Beyond Speech and Association

 One of the most troubling developments in modern First Amendment doctrine is the judicial focus on the free speech right to the exclusion of other rights and the values and purposes that underlie them. This neglect has significant consequences for two aspects of the right of assembly: (1) the right to protest; and (2) the right to associate.

Protest

Most protests are governed under what is known as the public forum doctrine, which allows government to regulate expressive activity in public spaces through time, place, and manner restrictions. Today’s public forum doctrine is linked entirely to the free speech right—the right of assembly is seldom even mentioned in judicial analysis of protest restrictions. And current speech-based public forum analysis upholds restrictions on political protesters, anti-abortion demonstrators, labor picketers, churches, and religious groups. 

The focus on speech to the exclusion of assembly is odd, since a protest is often more obviously an assembly than it is speech, and some protests don’t include any verbal expression at all.

The origins of the public forum doctrine are closely linked to the right of assembly. As the Court noted in one of its earliest cases that recognized the public forum: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” The public forum is a First Amendment doctrine, not a free speech doctrine. 

Association

The First Amendment refers to the right of the people “to assemble.” That wording suggests a momentary gathering, like a protest or parade. But the verb “assemble” presupposes a noun—an assembly. And while some assemblies occur spontaneously, most do not. People usually need to form a group or association of some kind before they assemble in public. Those formative experiences include building relationships, developing ideas, and forming social bonds—activities that ought to be protected from unwarranted government interference. Just as government can effectively eliminate the free speech right by imposing a prior restraint before speech manifests, it can effectively eliminate the assembly right by restricting a group or association before it assembles in public.

The Supreme Court has attempted to address these other interests by recognizing a “right of association” that does not appear in the text of the Constitution. The Court initially linked this right to the First Amendment rights of speech and assembly. Over time, however, courts and scholars neglected the assembly roots of the right of association and focused increasingly on speech and expression.

The clearest example of the Court’s focus on outward expression at the cost of other important values underlying assembly is its recognition of the category of “expressive association” in a 1984 decision, Roberts v. United States Jaycees. (The Jaycees decision also recognized a separate category of “intimate association,” but courts have narrowed eligibility for that constitutional category to the point that it offers few practical protections.)

The basic idea of expressive association is that a group is eligible for constitutional protection only to the extent that its purposes and activities further some other First Amendment interest, like speech, press, or religion. The Supreme Court has put it this way: “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

In other words, the legal doctrine of expressive association instrumentalizes the associational right—it must be enlisted toward some purportedly more significant end. But as political theorist George Kateb has observed, in the real world, “people find in association a value in itself.” Instrumentalizing association toward outwardly expressive ends neglects these other goods.

Expressive association also comes with a troubling corollary: some associations are “non-expressive.” This category of non-expressive association obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive. It becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group.

Finally, the right of expressive association seems to marginalize the significance of a group’s composition, membership, and leadership to its other expressive purposes. As the Supreme Court has asserted on multiple occasions:

There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate.

Roberts v. United States Jaycees (1984).

Yet, in practice, the Court has often failed to honor the implications of this claim. In one of the most disturbing decisions in this area of the law, a 5-4 majority concluded in a 2010 decision, Christian Legal Society v. Martinez, that claims of speech and expressive association simply “merge” into free speech analysis. That conclusion implies that the right of association raises no important First Amendment values left unaddressed by the free speech right. So, too, it seems with the Court’s treatment of the rights of assembly and petition.

by John Inazu

Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis School of Law [photo credit Joe Angeles]