Freedom of Association

1. Freedom of Association • Roberts v. US Jaycees – Facts • Minn. Branch of Jaycees allowed women to be full members – violates Jaycees national policy which threatened to pull charter. Minn. chapter filed discrimination charges claiming that exclusion of women from full membership violated Minn. Human Rts. Act – prohibits discrimination in public accommodations. • Public accommodation in Minn. Act = business, accommodation, refreshment, entertainment, recreation or transportation facility whose goods, services, facilities, privileges or advantages are made available to the public. • US Jaycees brought federal lawsuit arguing that forced inclusion of women violated organization’s right to associate under 1st amendment.

2. Two kinds of Freedom of Association in Roberts • Intimate Association - The right to enter into and maintain certain intimate human relationships • Expressive Association – The right to engage in group effort to speak, worship and petition the government • Protection of both relate to expression because the ability to associate with others has “played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs . . . [and] thereby foster[ing] diversity and act[ing] as critical buffers between the individual and the power of the State.”

3. Roberts v. US Jaycees – Intimate Association • Intimate association must be secured from undue intrusion (p. 226) • 2 poles to relationships – families (protected) & business enterprises (not protected) • If group falls in-between – look to factors (size, purpose, policies, selectivity, congeniality, other characteristics) • Why don’t Jaycees fit w/in “intimate association”? • What kinds of groups would fall under this protection? • Even if group is an “intimate association” it isn’t automatically protected – law is okay as long as it isn’t an “undue” intrusion

4. Government Actions Implicating the Right to Expressive Association • SCT recognizes correlative right to associate with others as necessary to fully effectuate free speech rights • There are different ways in which gov’t action can infringe on this right to expressive association: • Punishment of membership in a disfavored group – punishment for the bad acts of others (communist cases) • Forced disclosure requirements re membership (will see some re anonymity cases) • Forced association with people arguably inconsistent with group’s message – i.e., messing with internal affairs of group or compelled association with unwelcome speech (Roberts, Hurley, Dale)

5. Roberts v. Jaycees – Expressive Association • Relevant Question (pp. 227-28): Does the group associate to facilitate shared goals of expression, worship or petition of the gov’t? • Even then, a law can burden this right if it is: • adopted to serve a compelling interest, • unrelated to the suppression of ideas, and • cannot be achieved through means significantly less restrictive of associational freedoms.

6. Roberts expressive ass’n test in application: • Is the law : • Adopted to serve a compelling interest? • Unrelated to the suppression of ideas? • What is the Jaycee’s goal? Does inclusion of women interfere w/ that? • Would the outcome change if the Jaycees were a group dedicated to eradicating women from the workplace? • Can the interest be achieved through means significantly less restrictive of associational freedoms? • Are there problems with approaching the issue as the majority does? • Should we worry about looking for a particularized message w/ which inclusion of another interferes? • Is O’Connor’s approach better? • Std – are the group’s activities not predominately the type protected by the 1st amendment (i.e., predominately commercial)?

7. Hurley v. GLIB • Holding: Inclusion of GLIB in privately-sponsored St. Pat’s day parade violates parade sponsor’s right to expressive association. • Is organizing a parade inherently expressive? • What particularized message did the parade organizers convey in Hurley? • Did the Court require a particularized message? • Why does inclusion of GLIB violate expression of association? How is this issue different than in Roberts? • Why isn’t a parade (made up of different constituencies) like a cable company in Turner – i.e., why isn’t it just a conduit for speakers?

8. Boy Scouts v. Dale • Boy Scouts argued that forced inclusion of James Dale interfered with the right of expressive association. His open homosexuality was inconsistent with values Scouts sought to instill. • Court asked two main questions: • Do the Boy Scouts engage in “expressive association?” • This is at least a minimal requirement in order to gain 1st amendment protection. (p. 237) • Does the inclusion of Dale “significantly burden” or interfere w/ Boy Scouts right to expressive association? • Shorthand SCT used for the last two prongs of the Roberts test after it found the anti-discrimination interest was compelling. • Unclear whether this is a new version of the test or just SCT’s spin on the test in this case.

9. Dale Applied • Do the Boy Scouts engage in “expressive association?” • Who has the better argument – the majority or the dissent? • How deferential was (should) a court be to the group’s claimed message? • What evidence was there to support group’s claim? • How particularized must the message be? • Does the inclusion of Dale affect/burden the group’s • expressive association? • Who has the better argument – the majority or the dissent? • To what extent is Hurley relevant? • To what extent do anti-discrimination laws survive Dale? • Does Roberts survive Dale?