Freedom of Association

After the American Revolution, neither the U.S. nor the state constitutions protected the freedom of association. They protected the freedom of assembly, which encompassed the right of ‘‘the people’’ collectively to protest against an unjust government but did not protect minorities from majorities.

States limited the freedom of association to protect the majority from minorities. Political parties were considered ‘‘factions’’ that put private interests ahead of the common good. Labor unions were treated as illegal ‘‘conspiracies’’ in common law, because they promoted the interests of one class over the public interest. The ability to form a corporation was strictly limited. Corporations were considered public institutions that must serve the common good. In New England, states denied corporate privileges to many churches until disestablishment in 1818 in Connecticut, 1819 in New Hampshire, and 1833 in Massachusetts. Virginia refused to grant any churches corporate privileges, denying them the ability to hold property and govern their own institutional affairs. The status of corporations changed when the Supreme Court, in the Dartmouth College (1819) decision, ruled that corporate charters were contracts protected by the Constitution. Dartmouth transformed many corporations from public agencies to private ones. After Dartmouth, corporations gained new rights vis-a´-vis the state. Moreover, as the number of corporations expanded, more and more citizens demanded the right to form one to pursue their own commercial and charitable purposes. States responded with general incorporation laws allowing any group of persons to associate and receive corporate privileges under certain guidelines.

Philanthropic trusts followed a similar path as corporations. Americans, especially Thomas Jefferson, worried that trusts placed too much wealth beyond the people’s control. Many states denied their courts equity jurisdiction for trusts. In the Girard Will case (1844), however, the U.S. Supreme Court ruled that federal common law recognized trusts, granting them legal rights and privileges.

Laborers continued to struggle for the right to organize. Not until the early 1810s in New York, and then in the1844 Massachusetts case of Commonwealth v. Hunt, did laborers gain the freedom to associate. When laborers sought collective bargaining or closed shops, however, courts continued to define their activities as coercive and illegal.

After the Civil War, associations and corporations faced new challenges and limits. Labor unions continued to seek collective bargaining rights, whereas courts used new techniques, such as the injunction, to limit them. Catholics faced a challenge to their freedoms when Oregon passed a law requiring all children to attend public schools. With the KKK’s support, Oregonians hoped to teach Catholics Protestant values. In Pierce v. Society of Sisters (1925), the Supreme Court ruled that the law violated religious liberty, permitting religious minorities to associate for educational purposes.

During the Gilded Age, business corporations expanded beyond any one state’s control and threatened the welfare of workers and consumers. Politicians and reformers pressed for new regulations, but federal courts struck down state laws interfering with economic freedom. In the Progressive and New Deal eras, reformers turned to the federal government. Starting with the Sherman Anti-Trust Act, the federal government committed itself to ensuring a free market by challenging corporate monopolies. Ironically, the Sherman Act was also used against unions until the Wagner Act legalized collective bargaining and set up procedures to recognize unions in return for allowing the federal government to oversee and regulate their activities. The subsequent Taft–Hartley Act weakened Wagner by permitting states to pass ‘‘right to work’’ laws limiting closed shops. Today, labor unions are again threatened. Many of the rights gained in the New Deal are routinely violated. In addition, important categories of workers, including agricultural workers, still do not have a guaranteed right to unionize.

From the 1920s through the 1950s, political minorities faced limits to their freedom to associate when their goals supposedly threatened the public interest. In the early 1920s, ten states passed laws to limit the activities of the Ku Klux Klan. Louisiana and New York also required KKK members to register with the state. These laws were upheld in Bryant v. Zimmerman (1928). The 1917 Espionage Act, passed during World War I, prohibited associating with groups hostile to the government. During the Red Scare, the Supreme Court in Gitlow v. New York (1925) upheld convictions for publishing communist propaganda. (Gitlow also incorporated the freedom of speech as a nationally protected right of all American citizens under the due process clause of the fourteenth amendment. As a result, the federal government became the major arbiter in future freedom of association cases.) The Alien Registration (or Smith) Act (1940) extended the ban to peacetime. In 1947, President Truman issued Executive Order 9835 requiring all civil servants to declare loyalty to the government and prohibiting membership in any association the Attorney General determined to be ‘‘totalitarian, fascist, communist, or subversive.’’

Gilded Age money established new philanthropic foundations, including those founded by Rockefeller and Carnegie. Many progressives echoed Jefferson’s fears that the foundations would enhance the power of the rich through permanent foundations beyond the people’s control. In fact, foundations proved supportive of many progressive causes and it was the Right that turned against them. In the early 1950s, Congressional leaders in the House Select Committee to Investigate Tax-Exempt Foundations launched a broad probe into whether foundations were promoting communist ideas within the United States.

The emergence of constitutional protection for the freedom of association was tied to the civil rights revolution of the twentieth century. In the 1950s, southern states sought to check the NAACP by forcing members to register their names. In NAACP v. Alabama (1958), the Supreme Court ruled that the freedom to associate is protected by the Constitution. According to Justice John M. Harlan, ‘‘It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of ‘liberty’ assured by the Fourteenth Amendment due process clause.’’ The freedom of association was not absolute, however. The Court distinguished NAACP from Bryant by noting that the KKK, unlike the NAACP, promoted violence and illegal activity.

Although NAACP raised the bar for limiting associations, the Supreme Court continued to allow the government to monitor, and to limit, the activities of associations deemed threatening. In Dennis v. United States (1951) and Yates v. United States (1957), the Court upheld convictions under the Smith Act for advocating the violent overthrow of the U.S. government. Two cases concerning the membership clause of the Smith Act were decided in 1961. The first, Scales v. United States, sustained the conviction of a member of the Communist Party, because party membership proved commitment to overthrow the government. In Noto v. United States (1961), the Court limited the Smith Act to cases in which violence against the government was clearly intended, providing greater protection for the freedoms of expression and association.

The McCarran Subversive Activities Control Act (1950) and the Communist Control Act (1954) passed in the McCarthy era required Communist groups to register members with the Attorney General. The McCarran act was upheld in Communist Party v. Subversive Activities Control Board (1961). Moderating the act in Albertson v. Subversive Activities Control Board (1965), a unanimous Supreme Court ruled that the Board could not force a person to register if he invoked the Fifth Amendment. Congress subsequently repealed the mandatory registration clause. Finally, in Boorda v. Subversive Activities Control Board (1969), the Supreme Court let stand a D.C. Circuit Court ruling that Party members cannot be exposed unless it can be proved that they shared the Party’s violent goals, bringing some of the protections promised in NAACP to Communists.

The Supreme Court also limited the scope of loyalty oaths such as those required under EO 9835. Adler v. Board of Education (1952) allowed state governments to refuse to hire public employees who belonged to the Communist Party or similar associations. In Elfbrandt v. Russell (1966) and Keyishian v. Board of Regents (1967), the Court changed course and ruled that such actions amounted to guilt by association.

Recent cases have continued to balance the freedom of association against the public interest. In Moose Lodge no. 107 v. Irvis (1972), the Court decided that private social clubs could refuse to admit a member because of his race without violating the Fourteenth Amendment. But in Bob Jones University v. United States (1983), the Court ruled that Bob Jones University could not receive nonprofit status, meaning that it must pay taxes, if it discriminates against African Americans. In Roberts v. U.S. Jaycees (1984), the Supreme Court ruled that the Jaycees of Minnesota must admit girls. The Court determined that admitting girls would not alter the association’s core mission and that the state’s interest in eradicating gender discrimination outweighed the Jaycees’ associative freedom. The Court reinforced these principles: Board of Directors of Rotary International v. Rotary Club of Duarte (1987). On the other hand, in Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the Boy Scouts’ religious beliefs permitted them to discriminate against homosexuals despite a New Jersey law protecting gay citizens. The Court argued that compelling the Boy Scouts to admit homosexuals violated the core purposes of the association and thus imposed an unconstitutional burden. Together, Jaycees and Boy Scouts expose the difficult balance the state has tried to maintain in the post-NAACP era.

After the attacks of September 11, 2001, new questions arose about how to balance the freedom of association with national security. These debates are nothing new. For better or for worse, Americans have always sought to balance the freedom of association with national security and the common good.

JOHANN N. NEEM

References and Further Reading

• Bresler, Robert J. Freedom of Association: Rights and Liberties under the Law. Santa Barbara, CA: ABC-CLIO, 2004.
• Cole, David, and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: Norton, 2002.
• Compa, Lance. Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards. Ithaca: ILR Press, 2004.
• Fellman, David. The Constitutional Right of Association. Chicago: University of Chicago Press, 1963.
• Gutmann, Amy, ed. Freedom of Association. Princeton: Princeton University Press, 1998.
• Hall, Peter Dobkin. Inventing the Nonprofit Sector and Other Essays on Philanthropy, Voluntarism, and Nonprofit Organizations. Baltimore: Johns Hopkins University Press, 2001.
• Hammack, David C., ed. Making the Nonprofit Sector in the United States: A Reader. Bloomington: Indiana University Press, 1998.
• Katz, Stanley, Barry Sullivan, and C. Paul Beach, Legal Change and Legal Autonomy: Charitable Trusts in New York, 1777–1893, Law and History Review 03 (1985): 1:51–89.
• Neem, Johann N. ‘‘Freedom of Association in the Early Republic: The Republican Party, the Whiskey Rebellion, and the Philadelphia and New York Cordwainers’ Cases.’’ Pennsylvania Magazine of History and Biography 127 (2003): 3:259–290.
• ———. ‘‘The Elusive Common Good: Religion and Civil Society in Massachusetts, 1780-1833.’’ Journal of the Early Republic 24 (2004): 3:381–417.
• Novak, William J. ‘‘The American Law of Association: The Legal-Political Construction of Civil Society.’’ Studies in American Political Development 15 (Fall 2001): 163–188
• Tomlins, Christopher L. The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960. New York: Cambridge University Press, 1995.
• ———. Law, Labor, and Ideology in the Early American Republic. New York: Cambridge University Press, 1993.
• Wyllie, Irvin G. ‘‘The Search for an American Law of Charity.’’ Mississippi Valley Historical Review 44 (1959): 2:203–221.

Cases and Statutes Cited

• Dartmouth College v. Woodward, 17 U.S. 518 (1819)
• Commonwealth v. Hunt, 4 Metcalf 111 (1842)
• Vidal v. Girard’s Executors, 43 U.S. 127 (1844)
• Pierce v. Society of Sisters, 268 U.S. 510 (1925)
• Gitlow v. New York, 268 U.S. 652 (1925)
• Bryant v. Zimmerman, 278 U.S. 63 (1928)
• Dennis v. United States, 341 U.S. 494 (1951)
• Adler v. Board of Education, 342 U.S. 485 (1952)
• Yates v. United States, 354 U.S. 298 (1957)
• NAACP v. Alabama, 357 U.S. 449 (1958)
• Scales v. United States, 367 U.S. 203 (1961)
• Noto v. United States, 367 U.S. 290 (1961)
• Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 (1961)
• Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965)
• Elfbrandt v. Russell, 384 U.S. 11 (1966)
• Keyishian v. Board of Regents, 385 U.S. 589 (1967)
• Boorda v. Subversive Activities Control Bd., 421 F.2d 1142 (D.C. Cir.1969)
• Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)
• Bob Jones University v. United States, 461 U.S. 574 (1983)
• Roberts v. United States Jaycees, 468 U.S. 609 (1984)
• Board of Directors, Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987)
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)