NAACP v. Alabama Ex Rel. Patterson, 357 U.S. 449 (1958)
Although the text of the First Amendment makes no mention of association or affiliation, the Supreme Court’s recognition of freedom of association as an implicitly protected expressive interest was hardly surprising. The only surprises were the unanimity of such recognition, and the fact that it did not occur until 1958. The opportunity arose from Alabama’s insistence that the National Association for the Advancement of Colored People (NAACP), as a condition of doing business in the state, submit a list of the names and addresses of its Alabama members. Association officials readily complied with all other conditions imposed on an out-of-state entity, but refused to provide such a roster because such a disclosure would abridge important interests of its members. The Alabama courts rejected that argument, and the Supreme Court agreed to review the case.
Standing to raise such a constitutional claim was a potentially serious impediment. The NAACP has sought standing both in its own right and as representative of the interests of its members. The Supreme Court strongly favored the latter rationale, ruling that the Association ‘‘argues more properly the rights of its members.’’ Turning quickly to the merits, Justice Harlan seemed untroubled by the novelty of the constitutional claim, noting that ‘‘effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,’’ citing much earlier cases based on the explicit First Amendment guarantee of freedom to assemble. Such a nexus between free speech and the right to associate existed ‘‘whether the beliefs sought to be advanced ... pertain to political, economic, religious or cultural matters.’’ This newly define liberty clearly applied here, since ‘‘compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association’’ as the blunter sanctions invalidated elsewhere.
Three critical issues remained. Alabama insisted that its demand for membership lists was not aimed at expression, and that if any chilling resulted, the cause was ‘‘private community pressure’’ and not governmental action. The Court rejected both claims, noting that government acts may abridge speech, ‘‘even though unintended’’ or even when the challenged action ‘‘may appear to be totally unrelated to protected liberties.’’ Moreover, even though the reprisals that Alabama NAACP members most feared were indeed mainly private, ‘‘the interplay of governmental and private action’’ warranted intervention here. Finally, none of the asserted state interests justified such an intrusive demand, especially of an organization that had fully complied with every other request.
Such easy and unequivocal recognition that the First Amendment included a freedom of association has contributed in at least two distinct ways to later constitutional development. For one, the NAACP case legitimized the process of implication, of finding expressive interests that were not specifically enumerated in the Bill of Rights. So, a decade later, the Supreme Court would confer protection on symbolic or nonverbal communication, finding no need to apologize for extending First Amendment guarantees well beyond the printed and spoken word. And when the justices were ready, another decade hence, to grant partial protection to Commercial Speech— despite an earlier categorical insistence that mere advertising had no place in the First Amendment—the recognition of freedom of association must again have lent comfort to the expansive process.
The more immediate impact of the NAACP ruling has also been profound, especially in the political realm. Barely two years had passed before the Court—now sharply divided—built on NAACP as the basis for recognizing anonymity as a protected expressive interest, a position the Court would reaffirm periodically thereafter. And while sustaining in the mid-1970s the post-Watergate campaign reform measures in Buckley v. Valeo (1976), the Court cautioned that the generally valid reporting and disclosure requirements could pose freedom-of-association problems for minor political parties.
The justices have also drawn from NAACP an expressive right not to be compelled to associate, in contexts such as holiday parades and social organizations— although importantly qualified by compelling governmental interests in equality of access. Most recently, the Court ruled that states may not mandate a single ‘‘open’’ or ‘‘blanket’’ primary in which all candidates and voters must participate. Relying directly on the NAACP decision, some forty-two years later, the Court declared that ‘‘representative democracy is unimaginable without the ability of citizens to band together in promoting ... the candidates who espouse their political views.’’ Any lingering doubts about the durability and vitality of freedom of association should thus have been allayed.
ROBERT M. O’NEIL
References and Further Reading
- Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
- California Democratic Party v. Jones, 530 U.S. 567 (2000).
- Emerson, Thomas I., Freedom of Association and Freedom of Expression, Yale Law Journal 74 (1964): 1.
- Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).
- Issacharoff, Samuel, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, Columbia Law Review 101 (2001): 274.
- Talley v. California, 362 U.S. 60 (1960).
- Tinker v. Des Moines School District, 393 U.S. 503 (1969).
- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
Cases and Statutes Cited
- Buckley v. Valeo, 424 U.S. 1 (1976)