Amendment 1 — Overview Of Freedom Of Association

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment ’s text does not expressly identify a “freedom of association,” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn1amd1 " Griswold v. Connecticut, 381 U.S. 479, 482 (1965). ") the Supreme Court has recognized this right as “an indispensable means of preserving” other First Amendment freedoms.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn2amd1 " Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). ") Specifically, the Court “has recognized a right to associate for the purpose of engaging” in “speech, assembly, petition for the redress of grievances, and the exercise of religion.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn3amd1 " Id. ")

This right of “expressive association” is the focus of this set of essays.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn4amd1 " Id. ") The Court has also recognized a “personal liberty” interest in “certain intimate human relationships,” protected not only by the First Amendment , but also by the Due Process Clause of the Fourteenth Amendment .[5](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn5amd1 " Id. at 617–18. See, e.g., Griswold, 381 U.S. at 486 (recognizing marriage as a protected relationship); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that “same-sex couples may exercise the fundamental right to marry,” that is “inherent in the liberty of the person” and protected under the Fourteenth Amendment). Although these two conceptions of associational freedom differ, the Court has explained that “[i]n many cases, government interference with one form of protected association will also burden the other form of association.” Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987). ") This concept of “intimate association” is discussed at the end of this section and in the essays on substantive due process.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn6amd1 " Roberts, 468 U.S. at 618. See and . ")

The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies” formed to petition the government.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn7amd1 " Presser v. Illinois, 116 U.S. 252, 267 (1886). See . ") It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn8amd1 " See Thomas v. Collins, 323 U.S. 516, 530 (1945) ( “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” ). ") In 1937, the Court held that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn9amd1 " De Jonge v. Oregon, 299 U.S. 353, 364 (1937). ") The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union “is protected not only as part of free speech, but as part of free assembly.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn10amd1 " Thomas, 323 U.S. at 532, 539–40. ")

Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment .[11](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn11amd1 " U.S. Const. amend. I; e.g., Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 409 (1950). ") By 1958, the Court considered it “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of” civil liberties such as the freedom of speech.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn12amd1 " NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Legal scholars have debated whether the Court initially grounded this right of association in the First Amendment (applicable to the states through the Fourteenth Amendment) or in the Fourteenth Amendment’s Due Process Clause. See John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 Tenn. L. Rev. 485, 501–17, 530–33 (2010) (discussing these two constitutional arguments and the early legal commentary after NAACP v. Alabama ex rel. Patterson); Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 624 (1980) (writing that before the Court’s 1965 decision in Griswold v. Connecticut, “the notion of constitutional protection of the freedom of association was a First Amendment doctrine and little more” ). Ultimately, the Court recognized two different strands of freedom of association, tying the freedom of expressive association to the First Amendment and the freedom of intimate association primarily to the Fourteenth Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984). ") Although political association is a classic example of expressive association,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn13amd1 " See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) (plurality opinion) (calling the “freedom of political association” a “highly sensitive area[ ]” of First Amendment activity requiring investigations to be “carefully circumscribed” ); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (observing the “special place the First Amendment reserves” for a political party’s selection of its own candidate). ") the First Amendment also protects “forms of ‘association’ that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn14amd1 " Griswold v. Connecticut, 381 U.S. 479, 483 (1965); see also Alabama ex rel. Patterson, 357 U.S. at 460–61 (stating that “it is immaterial,” for First Amendment purposes, “whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters” ). ")

Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati, the Court held that a local ordinance violated the freedoms of association and assembly on its face.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn15amd1 " 402 U.S. 611, 615 (1971). The Court also held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 614–15. ") The challenged ordinance made it a crime for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” [16](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn16amd1 " Id. at 611 (internal quotation marks omitted). ") According to the Court, this ordinance was “aimed directly at activity protected by the Constitution” —the freedoms of association and assembly.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn17amd1 " Id. at 616. By comparison, in City of Chicago v. Morales, a plurality of the Court concluded that a Chicago loitering ordinance did not substantially affect protected association because the ordinance defined loiter as “remaining in one place ‘with no apparent purpose.’” 527 U.S. 41, 53 (1999). The Court nevertheless held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 51. ")

More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one’s associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association#fn18amd1 " <span class="cite cite-type-case format-short" full="National Association for the Advancement of Colored People v. Alabama ex rel. Patterson, 357 U.S.