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The freedom of assembly is one of the few constitutional liberties that the
Framers graced with an adverb, securing the right of the people “peaceably to
assemble.” Were the freedom of assembly limited to orderly gatherings in public
parks, however, exercise of this right would implicate only clean streets and
crowd control. But ideas, and the rights that protect them, are far more
important.
The civil rights era in this country prompted the Supreme Court to consider
the collective beliefs that animate crowds and the voice — be it roar or oration
— with which the group speaks. This emphasis on a conceptual in addition to a
corporeal right to meet and discuss ideas led to the recognition of a right of
association. As the Supreme Court observed in 1958, “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.” Though the Constitution
does not expressly set forth a freedom of association, at least three strands of
law intersect at the junction of group speech: the right of assembly, the
privacy of intimate bonds, and freedom of expression. Appropriately, the
association doctrine reflects its subject: Constitutional protection for the
group involves diverse principles speaking in chorus.
Balancing interests
Because assembly involves free expression, the
congregational aspects of this First Amendment guarantee fit neatly in the
“time, place, and manner” doctrine set forth in United
States v. O'Brien (1968). As long as people “peaceably” convene to
picket, protest, or distribute handbills, the state may not penalize the
assembly. (See, e.g., DeJonge
v. Oregon, a 1937 case that reversed a conviction under Oregon’s
criminal syndicalism statute because it was based on mere attendance at an
orderly meeting of the Communist Party.) However, this protection does not
immunize the gathering from generally applicable health, safety and welfare laws
designed to protect private property, eliminate litter, curb visual blight,
facilitate traffic, control noise or minimize congestion.
Though the time-place-manner concept may be easily articulated, associational
interests still present challenges when the doctrine is applied. Courts must
examine the government’s justification to ensure that the challenged regulation
is indeed indifferent to the content of the speech. The scope of that inquiry
depends on where the assembly takes place. Courts will strictly scrutinize
regulations that attempt to limit assembly in places traditionally open to the
public such as parks or sidewalks. Strict scrutiny is the highest level of
review and requires the government to show that the ordinance is narrowly
tailored to achieve a compelling government interest. License or permit
requirements that favor or discourage certain groups, or that vest total
discretion in officials to grant such permits, are usually struck down. Shuttleworth
v. Birmingham (1969), for instance, struck down a parade ordinance that
"conferred upon the City Commission virtually unbridled and absolute power to
prohibit any 'parade,' 'procession,' or 'demonstration' on the city's streets or
public ways."
Procedural safeguards must protect the rights of all speakers or none — even
members of the Nazi party who intend to march through a predominantly Jewish
section of an Illinois city, as the 1977 U.S. Supreme Court ruled in National
Socialist Party v. Skokie.
The fact-sensitive balancing between regulators and those who assemble
requires careful line-drawing — sometimes literally. In cases concerning
anti-abortion protests, for example, restrictions have been allowed to keep
protesters a certain distance away from women approaching abortion clinics (see
the section on buffer zones).
Juvenile curfews
Particularly suspect are blanket regulations that
upset the balance O’Brien strikes between the government interest
asserted and the incidental burden on First Amendment rights. In City of
Chicago v. Morales, for example, the Supreme Court in 1999 struck down a
municipal code that criminalized loitering, which was defined as “to remain in
any one place with no apparent purpose.” Though the law was enacted to fight
gang activity, it improperly penalized much harmless activity and granted
officers immense discretion in assessing which kinds of behavior violated the
ordinance. Similarly, juvenile curfew laws have been challenged for trampling on
the rights of minors to meet and gather. Such ordinances have survived only
because they exempt activities protected under the First Amendment. (See Schleifer
v. City of Charlottesville, a 4th Circuit case from 1998.)
In 1993, the 5th U.S. Circuit Court of Appeals ruled in favor of a Dallas
curfew ordinance in Qutb
v. Strauss. The 5th Circuit examined the ordinance under strict-scrutiny
review and upheld it. The court concluded that the city, by including exceptions
to the ordinance, most notably exceptions for minors exercising their First
Amendment rights, had enacted a narrowly drawn ordinance that respected the
rights of juveniles and allowed the city to meet its goal of increasing juvenile
safety and decreasing juvenile crime.
The Dallas ordinance became the model for cities around the country wishing
to enact curfew ordinances. The 9th Circuit underscored the importance of the
exceptions when, in its 1997 ruling Nunez
v. San Diego, it declared a San Diego curfew ordinance unconstitutional.
The 9th Circuit ruled, in part, that the ordinance was not narrowly tailored to
minimize burdens on fundamental rights. The court, in particular, noted that
“San Diego rejected a proposal to tailor the ordinance more narrowly by adopting
the broader exceptions used in the ordinance upheld in Qutb.”
However, there is quite a difference of opinion among various courts as to
what standard applies when analyzing curfew statutes. Some, including the 5th
and 9th Circuits and the Florida Supreme Court, use strict scrutiny because
fundamental rights such as speech and assembly are implicated, as well as the
right to freedom of movement. Although other courts may agree that fundamental
rights are implicated, they have a different opinion as to the status of minors.
The U.S. Supreme Court has recognized that the rights of minors are not as
wide ranging as those of adults. (For example, see the 1944 ruling Prince
v. Massachusetts and the 1979 ruling Bellotti
v. Baird.) Minors enjoy the same constitutional protections as adults
but due to “their unique vulnerability, immaturity, and need for parental
guidance,” the state is within its bounds to exercise greater control over their
activities. Following this rationale, many courts, including the 2nd, 4th, 7th
and D.C. Circuits, have used intermediate scrutiny to review curfew laws.
Intermediate scrutiny requires the government to show that a law is
substantially related to an important government interest.
Due to the inconsistencies and disagreements within the courts, the standards
for what is an acceptable curfew law and what is unacceptable are not clear.
While some of the ordinances modeled after the Dallas law survived
constitutional challenges (see Schleifer
v. City of Charlottesville, a 1998 4th Circuit ruling; Hutchins
v. District of Columbia, a 1999 D.C. Circuit ruling; and Treacy v. Municipality of
Anchorage, a 2004 Alaska Supreme Court ruling), not all did.
In June 2003, the 2nd Circuit declared a curfew ordinance in Vernon, Conn.,
unconstitutional because it infringed on the rights of minors under the 14th
Amendment's equal-protection clause. (The clause is essentially a directive that
all persons similarly situated should be treated alike. See the Supreme Court's
1985 ruling in Cleburne
v. Cleburne Living Center.) In this particular case, the writing of the
ordinance and the exceptions it contained were not the issue, rather it was the
necessity of the ordinance. The town of Vernon passed the ordinance to reduce
juvenile crime and victimization at night but, according to the court, failed to
provide the requisite proof that the ordinance was needed. Since the curfew
restricted constitutional rights of juveniles, the town had to show that the
ordinance was substantially related to an important government interest. While
all parties agreed with the aims of the ordinance, the town failed to show that
juvenile crime was a problem during the curfew hours, thus the 2nd Circuit found
in Ramos
v. Town of Vernon that the ordinance was not substantially related to
the town’s interest in preventing juvenile crime.
In January 2004 another curfew ordinance fell when the 7th Circuit declared
an Indianapolis law unconstitutional. Indianapolis amended its curfew ordinance
in 2001 to include exceptions for the exercise of First Amendment rights. The
7th Circuit, however, found that the First Amendment defense provided in the
statute was inadequate since it did not require a law enforcement official to
look into whether any exceptions included in the statute applied before making
an arrest. So, if an officer came across a juvenile walking down the street
returning from a late night protest, the officer could arrest him without even
inquiring into why he was out. The court ruled in Hodgkins v.
Peterson that the possibility of arrest was intimidating enough to chill
a juvenile’s exercise of his First Amendment rights.
Two curfew ordinances were thrown out by the Florida Supreme Court in
November 2004. This case consolidated challenges to ordinances in Tampa and
Pinellas Park. In Florida
v. J.P., the court used strict-scrutiny analysis when looking at the
laws and found that neither were “narrowly tailored” and the criminal penalties
both ordinances called for were contrary to the stated purpose of protecting
minors from victimization.
Many cities enact curfews with the hope that they will prevent minors from
committing, or being the victim of, late night crime. Opponents challenge curfew
ordinances citing the restriction of minors' First Amendment rights. While
curfews do impact these rights, such as the right to associate with friends,
courts have found these restrictions can be justified if the city proves the
need for such a law.
Expressive association
The right to free association extends beyond
intimate relationships. Groups peaceably joined to engage in First Amendment
activities also enjoy protection from government interference. To constitute
“expressive association,” such interaction must be defined by common political,
cultural or economic activism. Social gatherings that are intended for leisure
and diversion do not qualify and may be regulated by the government for any
rational purpose. For instance, in the 1989 case City of
Dallas v. Stanglin, the Supreme Court upheld a local ordinance limiting
use of dance halls to teens between ages 14 and 18.
When people in an expressive association object to government action on First
Amendment grounds, courts consider the extent to which the challenged regulation
or statute interferes with the advocacy of the group. In NAACP v.
Alabama (1958), the Court concluded that the state could not compel
disclosure of the group’s membership list under a statute that required such
information from out-of-state corporations. In the tumultuous civil rights era,
the Court recognized that divulging the names of NAACP members would expose them
to attack and so undermine the ability of the group to advocate its message.
For some expressive groups, the membership is the message. Generally
applicable public-accommodation laws designed to foster inclusiveness can have
the effect of forced speech in derogation of an organization’s principles. In
Boy
Scouts of America v. Dale, the Court in 2000 agreed with the scouting
organization that inclusion of an openly gay scoutmaster — otherwise required
under New Jersey’s public-accommodation law — would unconstitutionally undermine
the organization’s promotion of “morally straight and clean values” in
youth.
Likewise, in Hurley
v. Irish-American Gay, Lesbian & Bisexual Group, the 1995 Court held
that a state public accommodation law could not require the South Boston Allied
War Veterans’ Council to include gay marchers in its St. Patrick’s Day parade.
According to the Court, application of this law would interfere with the group’s
social and religious agenda and violate its First Amendment rights as parade
sponsor.
In such cases, the Court examines the tradition, practices and selection
criteria of the group to determine if these cohere into shared speech. If so,
the Court will then assess whether state regulation of the internal organization
and affairs of the group would impair the group’s common expression. In Roberts
v. United States Jaycees, the Supreme Court determined in 1984 that
Minnesota’s interest in outlawing gender discrimination would not significantly
undermine the educational and charitable mission of the historically all-male
organization. Thus, the state could constitutionally require the group to admit
women as full members. The Court reached the same result in applying the
California Unruh Act against the Rotary Club, concluding that inclusion of women
would not require the all-male members to “abandon their basic goals of
humanitarian service, high ethical standards in all vocations, good will, and
peace” (Board of
Directors of Rotary International v. Rotary Club of Duarte, 1987).
Political association
A different problem arises when the
government seeks to punish or reward public employees based on their group
affiliations. To condition a benefit — the employment contract — on a state
employee’s participation in or disavowal of a certain political party violates
the First Amendment. In Rutan v.
Republican Party of Illinois (1990) the Court extended this prohibition
to promotions, transfers and recalls of government employees on the basis of
patronage. The only exception is for government workers who hold policy-level or
confidential positions.
The state may, however, require public employees to declare an oath affirming
allegiance to the constitutional processes of government. Negative oaths that
disavow past conduct or belief are constitutional only to the extent that the
activity disclaimed could have resulted in the denial of public employment, such
as knowing advocacy of the violent overthrow of the United States. Public
employees and others subject to state regulation also have a right not to
associate. Thus, lawyers subject to mandatory bar fees and workers who pay
required union dues may not be compelled to finance political and ideological
causes they oppose. Though the conduct described here involves speech, it could
be termed associational speech — in that conditioning public benefits (a job) on
an oath concerning whether a person does or does not belong or harbor loyalty to
certain groups implicates the right to join or not join these causes.
Citizens who wish to oppose Democrats and Republicans alike have a right,
under their freedom of association, “to create and develop new political
parties,” the Supreme Court said in the 1992 case Norman
v. Reed. However, this freedom is checked by the state’s interest in
preventing voter confusion, promoting legitimate competition in light of limited
ballot space, preventing ballot manipulation, and discouraging party
splintering. In balancing the need for an orderly election process against the
citizens’ right to associate in political parties of their choosing, the Court
weighs the “character and magnitude” of the burden on associational interests
against the state interest in imposing that burden. In Timmons
v. Twin Cities Area New Party (1997), that balance tilted in favor of
the state. Upholding Minnesota’s “antifusion” laws that prohibited candidates
from representing multiple parties on the ballot, the Court held that the need
for ballot integrity and stability outweighed the burden on candidates aspiring
to multiparty nomination.
When extremists assemble
Extremism has a voice, too. Advanced
technology allows like-minded believers to share ideas, distribute messages
cheaply and pervasively, and coordinate public campaigns. This trend promises an
upcoming test between gatherings of fringe groups and the need for a secure,
democratic society. The impulse to suppress unpopular and unsavory messages
confirms the importance of the First Amendment to organizations with views to
which many people object. The Boy Scouts are perhaps the most benign example of
such a group.
Certainly, the state may intervene if alarming messages would incite violent
or lawless action. But as to the functioning of groups — their membership and
internal affairs — Boy Scouts of America v. Dale suggests that the state
may not impose even generally applicable, otherwise neutral laws that could
impair the group’s freedom of expression. Doing so not only might frustrate
state regulators and law enforcement officials, turning radical groups into
impenetrable “black boxes,” but would also appear inconsistent with the Supreme
Court’s free-exercise jurisprudence, which does not exempt religious groups from
the effect of neutral, generally applicable laws. The Court will be faced with a
difficult decision when, for example, a condominium association claims that its
common purpose and continuing mission are to keep the races apart and that,
under Dale, the state may not force it to accept minority residents.
Should discrimination be any more tolerated simply because it is genuinely
believed and consistently shared within a group?
When messages of opposition turn to acts of violence and lawlessness, the
Court has required “precision of regulation” before individual members may be
held liable by the fact of their belonging. (See the 1982 decision NAACP v.
Claiborne Hardware Co.) On Oct. 31, 1969, the NAACP coordinated an
economic boycott against white businesses in Port Gibson, Miss., after
negotiations for racial equality broke down. Though the marches were generally
peaceful and orderly, some individuals enforced the boycott through violence and
threats of violence. When suit was brought, the Mississippi Supreme Court
imposed liability against the entire organization for the lawless acts of
certain members. Reversing this ruling, the U.S. Supreme Court explained that
uncontrolled violence by a few members could not be imputed to the group as a
whole, which retained constitutional protection for its peaceful demonstration.
As the Court noted:
“Civil liability may not be imposed merely because an individual
belonged to a group, some members of which committed acts of violence. For
liability to be imposed by reason of association alone, it is necessary to
establish that the group itself possessed unlawful goals and that the individual
held a specific intent to further those illegal goals.”
Fast-forward more than 30 years to when pro-life protesters coordinate
national demonstrations at abortion clinics. Some members engage in violence,
trespass and destruction of private property. The National Organization for
Women wins a unanimous jury verdict against prominent pro-life groups under RICO
— the Racketeering Influenced and Corrupt Organization statute, a federal law
designed to prosecute organized crime. The U.S. Supreme Court is left to
consider whether such a law can be used against the protesters. A decision is
expected by summer 2003.
Conclusion
In his book Democracy in America, Alexis de
Tocqueville noted of his visit to the United States in the 1830s:
“Americans of all ages, all stations in life, and all types of
dispositions are forever forming associations ... . Nothing, in my view, more
deserves attention than the intellectual and moral associations in
America.”
Associations in this country have powerful voices for enduring change: They
have ended segregation, ensured fair working conditions, stopped and started
wars, protected the environment, and sparked a host of other political, economic
and cultural transformations. Without the freedom to assemble, the right to
associate, and the liberty to project speech through group activism, free
expression would be a solitary and stifled guarantee indeed.
First Amendment Center legal researcher Bill Kenworthy contributed to this article.
Updated October 2006
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