By Adam Newton, Contributing Writer
September 16, 2002, updated June 2011
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.
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., De Jonge 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.
Shuttlesworth 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).
Particularly suspect are blanket regulations that upset the balance O’Brienstrikes 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 U.S. Circuit Court of Appeals 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. Although curfews do affect 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.
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).
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.
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 said 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. However, the U.S. Supreme Court dealt a setback to abortion clinics in 2006 in its 8-0 decision in Scheidler v. National Organization for Women, Inc., ending the two-decade-old legal fight over anti-abortion protests by ruling that federal extortion and racketeering laws cannot be used to ban demonstrations. (A 2003 ruling in the case had lifted a nationwide injunction on anti-abortion groups led by Joseph Scheidler and others; the 2006 decision came after the 7th Circuit had kept the case alive.)
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.