The “right of the people peaceably to assemble” is specifically guaranteed in Article I of the Bill of Rights and it has been incorporated as incumbent upon the states via the Fourteenth Amendment (see Incorporation Doctrine). But there is not mentioned either in the Constitution of the United States nor in that of the several states any specific right of association. Yet the latter is clearly a derivative and/or a component of the former, and as the judiciary began to develop and expand First Amendment rights in the twentieth century, especially after World War II, there was little doubt that a right of association was viewed as part‐and‐parcel of the right of assembly. Given what Alexis de Tocqueville accurately, if bemusedly, recognized 150 or more years ago as the American mania for joining organizations, such a marriage of rights was a natural development. Neither right is an “absolute” (see First Amendment Absolutism), and considerable litigation continues to reach the highest tribunals in the land. Both have been accorded generally liberal interpretations, but because both involve expressive conduct rather than pure speech, restrictions are bound to be as necessary as they are controversial (see First Amendment Balancing; First Amendment Speech Tests).
Thus, in the realm of the freedom to assemble, lines have been drawn by all three branches of the government with respect to assertions of the exercise of the right vis‐à‐vis the public streets, parades, processions, the public parks, at or near private homes, in both public and private shopping centers, picketing, and the communications industry. And the lines have proved to be vexatious, for almost any exercise of the right of peaceable assembly connotes the exercise of “speech plus”—a melange of speech mixed with conduct. The right of association poses similarly complex questions, although it is perhaps less obviously characterized by the “conduct” syndrome than assembly. However, problems arising from membership in organizations, such as the basic right to join with others in the pursuit of certain aims, be they private, public, political, social, or economic, have frequently reached the courts. Exclusions from quasi‐private organizations or clubs on the basis of race, religion, gender, or similar group characteristics have been the subject of much recent litigation. Lines between the “public” and “private” character of organizations have become increasingly blurred in the eyes of the judiciary (see Private Discriminatory Associations). A few specific illustrations of the Supreme Court's posture in assembly and association cases serve to underscore the endemic problems in drawing viable, lasting lines.
In the case of the right to assemble peaceably, the Court has repeatedly pointed out that the First Amendment does not “afford the same kind of freedom” to communicate conduct as to that which it extends to “pure speech” (e.g., Cox v. Louisiana, 1965, p. 555). There is no doubt that peaceful picketing, for example, is a vital and protected prerogative of freedom of assembly. But picketing that applies physical force to those who might wish to exercise their equal rights of freedom of expression by disregarding the picket line, or certain kinds of picketing violative of a pickatee's property rights or utterly unrelated to his or her “operations,” or picketing in derogation of secondary boycott statutes, is not privileged (e.g., compare and contrast Thornhill v. Alabama, 1940, with Giboney v. Empire Storage and Ice Co., 1949; or Amalgamated Food Employees Union v. Logan Valley Plaza, 1968, with Lloyd Corporation v. Tanner, 1972). In Frisby v. Schultz (1988), the Court ruled that when picketers concentrate on a single household rather than an entire neighborhood, the government may forbid such picketing in order to protect the homeowner's privacy. To prevent the clogging of sidewalks and public streets, licenses may be required for public parades and processions (Cox v. New Hampshire, 1941). And the Court has differentiated between demonstrations in front of a legislature (Edwards v. South Carolina, 1963) and on the premises of a jail (Adderley v. Florida. 1966), upholding the former and rejecting the latter.
In the associational sphere, the Cold War period of the 1950s and 1960s saw numerous cases reaching the Supreme Court. Many of them involved claims of associational freedom for communists and other allegedly subversive organizations (see Subversion). While mindful of government authority to guard against proscribed subversive activity (e.g., Dennis v. United States, 1951, and Barenblatt v. United States, 1959), the Court ultimately and pointedly rejected a doctrine of “guilt by association” and focused on individual rather than group action and responsibility (e.g., Yates v. United States, 1957, and DeGregory v. New Hampshire, 1966) (see Communism and Cold War). But in a series of cases involving harassment of the NAACP by state legislative investigating bodies, it made clear that groups that themselves are neither engaged in subversive or other illegal or improper activities, nor demonstrated to have any substantial connections with such activities, are entitled to be protected in their rights of free and private association (e.g., NAACP v. Alabama, 1958, and Gibson v. Florida Legislative Committee, 1963).
The 1980s brought sundry challenges to the exclusivist practices of clubs and associations that, invoking the right of freedom of association, would discriminate on grounds of applicants' gender and race. Here the Court developed a consistent policy of upholding laws and ordinances that bar such discrimination, especially when the organizations are sizeable and nonexclusive (e.g., Roberts v. United States Jaycees, 1984, and Rotary International v. Rotary Club of Duarte, 1987) or when private clubs above a certain size (four hundred in New York City) provide regular meal service for members and guests and have members' dues paid by nonmembers, such as employers (New York State Club Association v. City of New York, 1988).
Bibliography
- M. Glenn Abernathy, The Right of Assembly and Association,
2d rev. ed. (1981). - David Fellman, The Constitutional Right of Association (1963)
— Enry J. Abraham
