“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”518 It would appear from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition,519 although it has at times seemingly been referred to as a separate, independent freedom protected by the First Amendment.520 The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.521
518 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 (1958).
519 357 U.S. at 460; Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960); United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578-79 (1971); Healy v. James, 408 U.S. 169, 181 (1972).
520 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958); NAACP v. Button, 371 U.S. 415, 429-30 (1963); Cousins v. Wigoda, 419 U.S. 477, 487 (1975); In re Primus, 436 U.S. 412, 426 (1978); Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981).
521 See “Maintenance of National Security and the First Amendment,” infra.
Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain States were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the State. “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.”522 “[T]hese indispensable liberties, whether of speech, press, or association,”523 may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the State had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.
Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock,524 that the disclosure of membership lists, because of the harm to be caused to “the right of association,” could only be compelled upon a showing of a subordinating interest; ruled in Shelton v. Tucker,525 that while a State had a broad interest to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the NAACP;526 and overturned a state court order barring the NAACP from doing any business within the State because of alleged improprieties.527 Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, while other actions might not have been, the State could not so infringe on the “right of association” by ousting the organization altogether.528
522 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
523 357 U.S. at 461.
524 361 U.S. 516 (1960).
525 364 U.S. 479 (1960).
526 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961).
527 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964).
528 377 U.S. at 308, 309.
A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment.529 “[A]bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.... In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression....”
“We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.”530 This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;531 in the second the union retained attorneys on a salaried basis to represent members;532 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.533 Wrote Justice Black: “[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights....”534
529 NAACP v. Button, 371 U.S. 415 (1963).
530 371 U.S. at 429-30. Button was applied in In re Primus, 436 U.S. 412 (1978), in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to utilize the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. “[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” Id. at 431. “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 426. However, ordinary law practice for commercial ends is not given special protection. “A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 459 (1978). See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977), and see the comparison of Ohralik and Bates in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 296-98 (2007) (“solicitation ban was more akin to a conduct regulation than a speech restriction”).
Thus, a right to associate together to further political and social views is protected against unreasonable burdening,535 but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was given birth.
Social contacts that fall short of organization or association to “engage in speech” may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no “generalized right of ’social association’ that includes chance encounters in dance halls.”536
In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees537 upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int'l v. Rotary Club of Duarte,538 the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass'n v. New York City,539 the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the State’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. On the one hand, the Court found, “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e.g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.”540 Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of intimate or private relation that warrants constitutional protection.”541 And in the New York City case, the fact that the ordinance certainly could be constitutionally applied at least to some of the large clubs, under [the] decisions in Rotary and Roberts, the applicability criteria “pinpointing organizations which are ‘commercial’ in nature,” helped to defeat the facial challenge.542
531 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964).
532 United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217 (1967).
533 United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
534 401 U.S. at 578-79. These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veterans’ death or disability claims before VA).
535 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175-76 (1976); Norwood v. Harrison, 413 U.S. 455, 469-70 (1973); Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945). Roberts v. United States Jaycees, 468 U.S. 609 (1984).
536 City of Dallas v. Stanglin, 490 U.S. 19 (1989). The narrow factual setting— a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that “coming together to engage in recreational dancing . . . is not protected by the First Amendment.” Id. at 25.
537 468 U.S. 609 (1984).
538 481 U.S. 537 (1987).
539 487 U.S. 1 (1988).
540 468 U.S. at 621.
541 481 U.S. at 546.
542 487 U.S. at 12.
Some amount of First Amendment protection is still due such organizations; the Jaycees and its members had taken public positions on a number of issues, and had engaged in “a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional protection.” However, the Roberts Court could find “no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.”543 Moreover, the State had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages.”544
Because of the near-public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers—the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs.545 In New York City, the Court noted that “opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case-by-case analysis of specific facts.”546
543 468 U.S. at 626-27.
544 468 U.S. at 628.
When application of a public accommodations law was viewed as impinging on an organization’s ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group.547 To do so would require parade organizers to promote a message they did not wish to promote. The Roberts and New York City cases were distinguished as not involving “a trespass on the organization’s message itself.”548 Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group “could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.”549
In Boy Scouts of America v. Dale,550 the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization’s “First Amendment right of expressive association.”551 Citing Hurley, the Court held that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”552 The Boy Scouts, the Court found, engages in expressive activity in seeking to transmit a system of values, which include being “morally straight” and “clean.”553 The Court “accept[ed] the Boy Scouts’ assertion” that the organization teaches that homosexual conduct is not morally straight.554 The Court also gave “deference to [the] association’s view of what would impair its expression.”555 Allowing a gay rights activist to serve in the Scouts would “force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”556
545 The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case-by-case approach is necessary to determine whether “the ‘zone of privacy’ extends to a particular club or entity.” 481 U.S. at 547 n.6.
546 487 U.S. at 15.
547 515 U.S. 557 (1995).
548 515 U.S. at 580.
549 515 U.S. at 580-81.
550 530 U.S. 640 (2000).
551 530 U.S. at 644.
552 530 U.S. at 648.
553 530 U.S. at 650.
554 530 U.S. at 651.
555 530 U.S. at 653.
556 530 U.S. at 653. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 69 (2006), the Court held that the Solomon Amendment’s forcing law schools to allow military recruiters on campus does not violate the schools’ freedom of expressive association because “[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. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” Rumsfeld is discussed below under “Government and the Power of the Purse.” See also Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of American v. James Dale Warped the Law of Free Association (Yale University Press, 2009).
Political Association.—The major expansion of the right of association has occurred in the area of political rights. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments.... The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.”557 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes558 has passed on numerous state restrictions that have an impact upon the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social and economic goals.559 Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process which necessarily will work a diminution of the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests.560 Many restrictions upon political association have survived this sometimes exacting standard of review, in large measure upon the basis of some of the governmental interests found compelling.561
557 Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).
558 393 U.S. 23 (1968).
559 E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enrollment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary if he voted in another party’s primary within preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1982) (limit on contributions to associations formed to support or oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) (resign-to-run law).
If people have a First Amendment right to associate with others to form a political party, then it follows that “[a] political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the State gives a party a role in the election process — as . . . by giving certain parties the right to have their candidates appear on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be.”42
A political party’s First Amendment right to limit its membership as it wishes does not render invalid a state statute that allows a candidate to designate his party preference on a ballot, even when the candidate “is unaffiliated with, or even repugnant to, the party” he designates.43 This is because the statute in question “never refers to the candidates as nominees of any party, nor does it treat them as such”; it merely allows them to indicate their party preference.44 The Court acknowledged that “it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties,” but “whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot.”45 If the form of the ballot used in a particular election is such as to confuse voters, then an as-applied challenge to the statute may be appropriate, but a facial challenge, the Court held, is not.46
A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicy-making, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations,562 the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”563 The concept of policymaking, confidential positions was abandoned, the Court noting that some such positions would nonetheless be protected whereas some people filling positions not reached by the description would not be.564 The opinion of the Court makes difficult an evaluation of the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois565 held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996 the Court extended Elrod and Branti to protect independent government contractors.566
560 Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); Bullock v. Carter, 405 U.S. 134, 142-143 (1972); Storer v. Brown, 415 U.S. 724, 730 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979).
561 Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the Court found “compelling” the state interest in achieving stability through promotion of the two-party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31-32 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973). See also Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973) (efficient operation of government justifies limits on employee political activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting political party to designate replacement in office vacated by elected incumbent of that party serves valid governmental interests). Storer v. Brown was distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding invalid a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot; state interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state interests are insubstantial in imposing “closed primary” under which a political party is prohibited from allowing independents to vote in its primaries). California Democratic Party v. Jones, 530 U.S. 567, 577 (2000) (requirement of a “blanket” primary, in which all registered voters, regardless of political affiliation, may participate, unconstitutionally “forces political parties to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”); Clingman v. Beaver, 544 U.S. 581 (2005) (Oklahoma statute that allowed only registered members of a political party, and registered independents, to vote in the party’s primary does not violate freedom of association; Oklahoma’s “semiclosed primary system” distinguished from Connecticut’s closed primary that was struck down in Tashjian).
42 New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797-98 (2008) (citations omitted). In Lopez Torres, the Court upheld a state statute that required political parties to select judicial candidates at a convention of delegates chosen by party members in a primary election, rather than to select candidates in direct primary elections. The statute was challenged by party members who had not been selected and who claimed “that the convention process that follows the delegate election does not give them a realistic chance to secure the party’s nomination.” Id. at 799. The Court rejected their challenge, holding that, although a state may require “party-candidate selection through processes more favorable to insurgents, such as primaries,” id. at 799, the Constitution does not demand that a state do so. “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.” Id. at 799. The plaintiffs had an associational right to join the party but not to have a certain degree of influence in the party. Id. at 798.
43 Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1189 (2008). This was a 7-to-2 decision written by Justice Thomas, with Justices Scalia and Kennedy dissenting.
44 128 S. Ct. at 1192.
45 128 S. Ct. at 1193. The Court saw “simply no basis to presume that a well-informed electorate will interpret a candidate’s party preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate.” Id.
46 A ballot could avoid confusion by, for example, “includ[ing] prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party.” 128 S. Ct. at 1194. Justice Scalia, joined by Justice Kennedy in dissent, wrote that “[a]n individual’s endorsement of a party shapes the voter’s view of what the party stands for,” and that it is “quite impossible for the ballot to satisfy a reasonable voter that the candidate is ‘not associated’ with the party for which he has expressed a preference.” Id. at 1200.
562 Elrod v. Burns, 427 U.S. 347 (1976). The limited concurrence of Justices Stewart and Blackmun provided the qualification for an otherwise expansive plurality opinion. Id. at 374.
563 Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same page, the Court refers to a position in which “party membership was essential to a discharge of the employee’s governmental responsibilities.” (emphasis supplied). A great gulf separates “appropriate” from “essential,” so that much depends on whether the Court was using the two words interchangeably or whether the stronger word was meant to characterize the position noted and not to particularize the standard.
The protected right of association extends as well to coverage of party principles, enabling a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, while legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.567
Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained.568 “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.... We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest.... We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ’substantial relation’ between the governmental interest and the information required to be disclosed.”569 The governmental interests effectuated by these requirements - providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing.570 A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject them to threats or reprisals could obtain an exemption from the courts.571 The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.572
564 Justice Powell’s dissents in both cases contain lengthy treatments of and defenses of the patronage system as a glue strengthening necessary political parties. 445 U.S. at 520.
565 497 U.S. 62 (1990). Rutan was a 5-4 decision, with Justice Brennan writing the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia, that they would not only rule differently in Rutan, but that they would also overrule Elrod and Branti.
566 O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation that city removed petitioner’s company from list of those offered towing business on a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the First Amendment). See also Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996) (termination or non-renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment).
567 Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed which delegation from State would be seated at national convention; national party had protected associational right to sit delegates it chose).
568 Buckley v. Valeo, 424 U.S. 1, 60-84 (1976).
Conflict Between Organization and Members.—It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.573 But at least in some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may well be constitutional limitations. Disputes implicating such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.574
569 424 U.S. at 64 (footnote citations omitted).
570 424 U.S. at 66-68.
571 424 U.S. at 68-74. Such a showing, based on past governmental and private hostility and harassment, was made in Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982).
572 424 U.S. at 74-84.
573 The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537, 29 U.S.C. §§ 411-413, enacted a bill of rights for union members, designed to protect, inter alia, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.
574 § 8(a)(3) of the Labor-Management Relations Act of 1947, 61 Stat. 140, 29 U.S.C. § 158(a)(3), permits the negotiation of union shop but not closed shop agreements, which, however, may be outlawed by contrary state laws. § 14(b), 61 Stat. 151, 29 U.S.C. § 164(b). See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949). In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 U.S.C. § 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S. 225 (1956).
Initially, the Court avoided constitutional issues in resolving a challenge by union shop employees to use of their dues money for political causes. Acknowledging “the utmost gravity” of the constitutional issues, the Court determined that Congress had intended that dues money obtained through union shop agreements should be used only to support collective bargaining and not in support of other causes.575 Justices Black and Douglas, in separate opinions, would have held that Congress could not constitutionally provide for compulsory membership in an organization which could exact from members money which the organization would then spend on causes which the members opposed; Justices Frankfurter and Harlan, also reaching the constitutional issue, would have held that the First Amendment was not violated when government did not compel membership but merely permitted private parties to enter into such agreements and that in any event so long as members were free to espouse their own political views the use by a union of dues money to support political causes which some members opposed did not violate the First Amendment.576
In Abood v. Detroit Bd. of Education,577 the Court applied Hanson and Street to the public employment context. Recognizing that employee associational rights were clearly restricted by any system of compelled support, because the employees had a right not to associate, not to support, the Court nonetheless found the governmental interests served by the agency shop provision—the promotion of labor peace and stability of employer-employee relations—to be of overriding importance and to justify the impact
575 International Ass'n of Machinists v. Street, 367 U.S. 740 (1961). The quoted phrase is at 749.
576 367 U.S. at 775 (Justice Douglas concurring), 780 (Justice Black dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the same day, a majority of the Court declined, in Lathrop v. Donohue, 367 U.S. 820 (1961), to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues were faced squarely in Keller v. State Bar of California, 496 U.S. 1 (1990). An integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.” Id. at 14.
577 431 U.S. 209 (1977). That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226-32, but Justice Powell found the distinction between public and private employment crucial. Id. at 244.
upon employee freedom.578 But a different balance was drawn when the Court considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union’s duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.579 However, the remedy was not to restrain the union from making non-collective bargaining related expenditures but to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system whereby employees could object generally to such use of union funds and could obtain either a proportionate refund or reduction of future exactions.580 Later, the Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for purposes to which the employee objects;”581 an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union’s fee.582 Therefore, the union procedure must also “provide for a reasonably prompt decision by an impartial decision-maker.”583
In Davenport v. Washington Education Ass’n,47 the Court noted that, although Chicago Teachers Union v. Hudson had “set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,”48 it “never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.”49 Thus, the Court held in Davenport that the State of Washington could prohibit “expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents.”50 The Court added that “Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely.”51
In Ysursa v. Pocatello Education Ass’n,52 the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union’s First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was “justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”53
On a related matter, the Court held that a labor relations body could not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.584
578 431 U.S. at 217-23. The compelled support was through the agency shop device. Id. at 211, 217 n.10. Justice Powell, joined by Chief Justice Burger and Justice Blackmun, would have held that compelled support by public employees of unions violated their First Amendment rights. Id. at 244. For an argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792-95 (1978), and id. at 802, 812-21 (Justice White dissenting).
579 431 U.S. at 232-37.
580 431 U.S. at 237-42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). A local union may also charge nonmembers a fee that goes to the national union to pay for litigation expenses incurred on behalf of other local units, but only if (1) the litigation is related to collective bargaining rather than political activity, and (2) the litigation charge is reciprocal in nature, i.e., other locals contribute similarly. Locke v. Karass, 129 S. Ct. 798, 802 (2009).
581 Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984).
582 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
583 475 U.S. at 309.
47 551 U.S. 177 (2007).
48 551 U.S. at 181, citing 475 U.S. 292, 302, 304-310.
49 551 U.S. at 185, quoting Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990), and adding emphasis..
50 551 U.S. at 184.
51 551 U.S. at 184 (citations omitted).
52 129 S. Ct. 1093 (2009).
53 129 S. Ct. at 1098. The unions had argued that, even if the limitation was valid as applied at the state level, it violated their First Amendment rights when applied to local public employers. The Court held that a political subdivision, “created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” Id. at 1101, quoting Williams v. Mayor, 289 U.S. 36, 40 (1933).
584 Madison School Dist. v. WERC, 429 U.S. 167 (1977).
Last modified: June 9, 2014