Right/Freedom of Association/History
Freedom of Association
History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations
What is the oldest source in any country that mentions this right? 🖉 edit
John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right. (Boyd, 241)
"'Suppose this Business of Religion were let alone,' Locke hypothesizes, 'and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.' Under conditions of differential treatment, such persons, 'united together by one common persecution,' would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter." (Boyd, 241)
Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues in On Liberty that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (1859, 16).
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
John Stuart Mill. On Liberty. Oxford World Classics
What historical forces or events, if any, contributed to a widespread belief in its importance? 🖉 edit
First mentions of freedom of association as a right emerged during the Enlightenment period of the 17th and 18th centuries from philosophers like John Locke and Montesquieu. Locke forms his argument on a larger scale in terms of political society as a whole: “Nothing can make any man so but his actually entering into [society] by positive engagement and express promise and compact. This is that which, I think, concerning the beginning of political societies, and that consent which makes any one a member of any commonwealth” (Locke 1690, 158). Montesquieu however specifies his argument in terms of economic associations: “… all associations of merchants, in order to carry on a particular commerce, are seldom proper in absolute governments” (Montesquieu 1748, 352). Conversely, if associations are not “proper” in absolute governments, one can conclude that Montesquieu advocated for freedom of association as a necessary component of a democratic society to protect individual interests. While Enlightenment philosophers were among the first to raise the issue of association rights, it took several hundred years for it to be officially and legally codified. Major historical movements that have promoted freedom of association are of twofold importance: firstly, association rights are often exercised to highlight societal or political injustices, but the right itself also lends legitimacy to the people who want to see progress in their societies and governments.
In terms of formal acceptances of freedom of association, the first country-specific code emerged in France in 1789 and the United States in 1791. In the Declaration of the Rights of Man and the Citizen, Article 11 establishes that “the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law” (“Declaration of the Rights of Man”). Shortly after the publication of this document, the First Amendment to the Constitution of the United States was ratified, ensuring that “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 grievances” (U.S. Constitution. Amendment I). While freedom of association is not explicitly identified here, the freedoms that are listed are specific elements of what constitutes freedom of association as a whole.
CODIFIED LAWS THAT PROTECT FREEDOM OF ASSOCIATION
The promotion of freedom of association did not emerge on an international scale until after World War II. First in 1948 with the adoption of the United Nations’ Universal Declaration of Human Rights (UDHR), Article 20 provides that “everyone has the right to freedom of peaceful assembly and association. No one may be compelled to belong to an association." This was the first international agreement to refer to human rights and liberties that everyone should enjoy, regardless of nationality or citizenship. And while this is not a universally legally binding document, it serves as a baseline for legal frameworks around the world and establishes freedom of association as a fundamental right of democratic societies. Building upon the UDHR later in 1966, the UN established the International Covenant on Civil and Political Rights (ICCPR) to ensure the protection of fundamental civil and political rights in each of its participant countries. Article 22 states that:
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others…
While the UDHR is an internationally focused agreement, it is not legally binding for the partner countries and therefore has no real jurisdiction or right to action. Conversely, the ICCPR as a legal document guarantees the rights it establishes in each country that ratifies the Covenant.
AMERICAN LABOR AND TRADE UNION MOVEMENT
The American labor and trade union movement of the early 20th century was a major historical force that contributed to a more widespread belief in freedom of association. In light of the industrialization of the 18th and 19th centuries, the movement fought for the rights of workers to form trade unions and bargain collectively. As we saw in the UDHR, one can think of union membership as an exercise of freedom of association. An example from the decade before the promulgation of the UDHR that might make this clear is the passage of the National Labor Relations Act into law in 1935. Its main objective was to guarantee freedom of association for employees via the formation of union organizations. Section 7. C provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” (United States Code: National Labor Relations). Because of the work of trade organizations like the American Federation of Labor and Congress of Industrial Organizations, freedom of association was now a legally protected right for American employees in their places of work.
The women’s suffrage movement of the 19th and 20th centuries was greatly dependent on freedom of association as a means of action, and it also helped to promote a more widespread belief in this freedom as a fundamental right. Organizations like the National American Woman Suffrage Association (NAWSA) in the US and the Women's Social and Political Union (WSPU) in the UK were instrumental in organizing efforts of like-minded people who wanted to see gender equality for political rights. One of the most notable events of the movement was the Seneca Falls Convention that convened in 1848. At this convention, Elizabeth Cady Stanton produced the Declaration of Sentiments, which explained both what activists wanted to see produced from their actions (i.e., gender equality socially, politically, religiously, and economically), but also how they planned to use freedom of association to publicize their message and complaints. The Declaration proclaims that “we shall employ agents, circulate tracts, petition the State and National legislatures, and endeavor to enlist the pulpit and the press on our behalf. We hope this Convention will be followed by a series of Conventions embracing every part of the country” (Stanton, 1848). By utilizing freedom of association to organize the efforts of their activists, they could achieve greater clarity of message and work more efficiently to bring their goals to fruition.
AMERICAN CIVIL RIGHTS MOVEMENT
Similar to the women’s suffrage movement, the Civil Rights Movement in America was highly dependent on the right to join organizations of one’s choosing and therefore was crucial to affirming the importance of freedom of association. But unlike the suffrage movement, there was an added barrier to the free utilization of this right— institutionalized racial segregation and discrimination. Organizations like the National Association for the Advancement of Colored People (NAACP) and the Student Nonviolent Coordinating Committee (SNCC) emerged as a way for like-minded individuals to coordinate efforts and provide support for other activists, but they were often met with resistance on grounds of racial discrimination. In the landmark case NAACP v. Alabama, John Patterson sued the state in an attempt to ban the organization from operating in Alabama based on the argument that “the NAACP was a foreign corporation not qualified to do business in Alabama” (Rubinowitz 2017, 1237). Patterson then “obtained an order compelling the NAACP to provide its membership list as part of the state’s assessment of the organization.” But “the organization refused to comply because of the harm that would cause both the individual members and the NAACP itself" (Rubinowitz 2017, 1237). The case reached the Supreme Court in 1958, and a unanimous Court decided in favor of the petitioners, explaining that “in the circumstances of this case, compelled disclosure of petitioner's membership lists is likely to constitute an effective restraint on its members' freedom of association…” (NAACP v. Alabama 357, 1958).
The anti-apartheid movement in South Africa spanned several decades of the 20th century and was aimed at dismantling the systemic racism that the government of South Africa was built on. It utilized and promoted freedom of association as a means to organize resistance efforts and promote fundamental equality which contributed to a widespread belief in this right. The African National Congress (ANC) was the primary group leading the liberation movement for many years before being forced to go underground in the 1960s. Despite this, and after decades of repression, censorship, and violence at the hands of the apartheid government, the resistance efforts reached new heights in the 1980s. As more community organizations began to appear, it became clear that there was a need for greater structure to achieve their goals of liberation. This led to the creation of organizations like the United Democratic Front (UDF) and Congress of South African Trade Unions (COSATU). The importance of these organizations cannot be overstated-- it was the persistent efforts of anti-apartheid associations that won out in the end and put the ANC in power from 1994 onwards (ANC History: The Struggle for People’s Power, 2023).
The Solidarity movement was a trade union movement in Poland in the late 20th century that leveraged freedom of association to protest the communist regime. Communist rule in Poland had long been unpopular, and Solidarity was not the first movement to arise in opposition to them, but it was the first to successfully utilize the right of association to produce change which proved its importance as a fundamental right (Bartkowski 2009, 2). Following years of economic decline, Poland saw massive labor strikes in the summer of 1980. The trade union Solidarity was born out of the Gdansk Shipyard under the leadership of Lech Walesa and was legalized by the Polish government shortly thereafter as they determined that “it is considered expedient to establish new self-governing trade unions that will genuinely represent the working class” (Gdansk Agreement 1980, 11). They became the first legal trade union in the Eastern Bloc, and they eventually grew into a popular political movement. But as its popularity and size continued to develop, the communist regime imposed martial law and forced Solidarity underground. However, Solidarity survived this repression and later played a key role in the appointment of the country’s first non-communist prime minister nearly a decade later (Bartkowski, 2009).
“ANC History.” African National Congress. Accessed June 16, 2023. https://www.anc1912.org.za/history/. Baron de Montesquieu, Charles de Secondat. The Spirit of the Laws. Translated by Thomas Nugent. Batoche Books, 2001. Bartkowski, Maciej. “Poland’s Solidarity Movement (1980-1989).” International Center on Nonviolent Conflict, December 2009. https://www.nonviolent-conflict.org/polands-solidarity-movement-1980-1989/. “Declaration of the Rights of Man.” Avalon Project. Accessed June 16, 2023. https://avalon.law.yale.edu/18th_century/rightsof.asp. Khronika Press. “The Gdansk Agreement: Protocol of Agreement between the Government Commission and the Interfactory Strike Committee Concluded on August 31, 1980 at Gdansk Shipyards.” World Affairs 145, no. 1 (1982): 11–19. http://www.jstor.org/stable/20671927. Locke, John. “Of the Beginning of Political Societies.” Essay. In Two Treatises of Government 10, 10:146–58. London: Thomas Tegg et. al, 1823. NAACP v. Alabama ex rel. Patterson (U.S. Supreme Court June 30, 1958). Rubinowitz, Leonard S. 2017. “The Courage of Civil Rights Lawyers: Fred Gray and His Colleagues.” Case Western Reserve Law Review 67 (4): 1227–75. https://search-ebscohost-com.uc.idm.oclc.org/login.aspx?direct=true&db=a9h&AN=123785450&site=ehost-live&scope=site. Stanton, Elizabeth Cady. “The Declaration of Sentiments.” The Seneca Falls Declaration 1848 . Accessed June 16, 2023. http://www.let.rug.nl/usa/documents/1826-1850/the-seneca-falls-declaration-1848.php. UN General Assembly. International Covenant on Civil and Political Rights (ICCPR). New York: United Nations General Assembly, 16 December 1966.
United Nations General Assembly. The Universal Declaration of Human Rights (UDHR). New York: United Nations General Assembly, 1948.
U.S. Constitution. Amendment I
United States Code: National Labor Relations, 29 U.S.C. §§ 151-166 Suppl. 2 . 1935.
What is the oldest written source in this country that mentions this right?
Afghanistan 🖉 edit
The first assertion of freedom of association is mentioned in the Afghanistan constitution of 2004 under Chapter II article 35. However, the Taliban has restricted freedom of association and assembly and does not respect the constitution https://www.state.gov/wp-content/uploads/2023/03/415610_AFGHANISTAN-2022-HUMAN-RIGHTS-REPORT.pdfhttps://www.ilo.org/dyn/natlex/docs/ELECTRONIC/66413/136339/F1123586512/AFG66413%20EN.pdf
Albania 🖉 edit
First assertion of the freedom of association in Albania is mentioned in the Albanian constitution of 1998. The right comes in Chapter III, Article 46 political rights and freedoms (Constitution of the Republic of Albania and The European commission for Democracy through law Venice commission) https://www.constituteproject.org/constitution/Albania_2012 https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)064-e
Algeria 🖉 edit
Algeria has had 4 constitutions. 1963, 1976, 1989 and 1996. First assertion of freedom of association in the People’s Democratic Republic of Algeria is first mentioned in the Article 43 of the 1976 constitution that was ratified on November 19th. The current Algerian constitution of 1989, reinstated in 1996, revised in 2016 mentions the freedom of association in Title II, Chapter 1, article 54 https://www.constituteproject.org/constitution/Algeria_2016
Andorra 🖉 edit
The first mention of freedom of association in Constitution of the Principality of Andorra of 1993 is mentioned in Chapter III, Article 17 https://www.constituteproject.org/constitution/Andorra_1993#s101
Angola 🖉 edit
The first assertion of the freedom of association in Angola is vaguely mentioned in the 1992 Angolan constitution on part II, article 32. The new 2010 constitution of Angola that was ratified January 21, mentions freedom of association in Chapter II, section I, article 48 https://constitutionnet.org/sites/default/files/Angola%20Constitution.pdf https://www.constituteproject.org/constitution/Angola_2010
Antigua and Barbuda 🖉 edit
The first assertion of freedom of association is mentioned on the Antigua and Barbuda constitution order 1981 ratified October 31st Chapter II, article 13(1) https://www.legislation.gov.uk/uksi/1981/1106/pdfs/uksi_19811106_en.pdf
Argentina 🖉 edit
The first assertion of the freedom of association of Argentina is first mentioned in the Constitution of the Argentine Nation of 1853 that was ratified May 25th in Part I, Chapter 1, article 14. That has not changed in the 1994 constitution http://www.biblioteca.jus.gov.ar/Argentina-Constitution.pdf https://www.constituteproject.org/constitution/Argentina_1994
Armenia 🖉 edit
First assertion of freedom of association is mentioned in the Constitution of the Republic of Armenia 1995 that was ratified July 5th with amendment through 2015 Chapter 2 article 45 https://www.rightofassembly.info/assets/downloads/1995_Constitution_of_Armenia_(as_amended).
Australia 🖉 edit
The first known assertion of the right to association in Australia is mentioned in the ICCPR article 22. Australia Ratified this treaty in 1980. In the Australian constitution there is no free-standing right to association https://www.alrc.gov.au/wp-content/uploads/2019/08/ip46_ch_4._freedom_of_association.pdf https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-association
Austria 🖉 edit
Azerbaijan 🖉 edit
The first assertion of freedom of association in the 1995 constitution of the Azerbaijan Republic is mentioned under Chapter III Article 58 section I through IV https://constitutionnet.org/sites/default/files/Azerbaijan%20Constitution.pdf
Bahrain 🖉 edit
The first assertion of freedom of association in the 1973 Constitution of the State of Bahrain that was ratified May 26th is mentioned under chapter III, article 27 https://www.servat.unibe.ch/icl/ba01000_.html
Bangladesh 🖉 edit
The first assertion of the Freedom of Association in Bangladesh is mentioned in the 1972 constitution of the People's republic of Bangladesh that was ratified on November 4th https://www.refworld.org/pdfid/3ae6b5684.pdf
Barbados 🖉 edit
The first assertion of Freedom of association in Barbados is first mentioned in the 1966 Constitution of Barbados that was ratified on November 22. The Constitution of Barbados has been amended at least 19 times https://www.wipo.int/wipolex/en/text/191401
Belarus 🖉 edit
The first assertion of Freedom of association in the Republic of Belarus is mentioned in the Belarus constitution of 1994, ratified March 15 on section II, article 36. The constitution was amended through a referendum November 26th, 1996, article 36 remains the same. https://constitutionnet.org/sites/default/files/Belarus%20Constitution.pdf https://www.venice.coe.int/webforms/documents/?pdf=CDL(2003)065-e
Belgium 🖉 edit
Belgium has one of the oldest constitutions in the world. The first assertion of freedom of association is mentioned in the Constitution of Belgium of 1831 that was ratified February 7th.Freedom of association is mentioned under title II, article 20. In the latest amendment it is mentioned under article 27. https://www.constituteproject.org/constitution/Belgium_1831 https://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/GrondwetUK.pdf
Belize 🖉 edit
First assertion of freedom of association in Belize is mentioned in the Belize Constitution of 1982 under Part II, Article 13(I). https://www.oas.org/dil/Constitution_of_Belize.pdf
Benin 🖉 edit
The first assertion of Freedom of Association in the Republic of Benin is mentioned in the Constitution of Benin that was adopted at the referendum on December 2nd, 1990 under Title II, article 25 https://constitutionnet.org/sites/default/files/Benin%20Constitution%20-%20English%20Summary.pdf
Bhutan 🖉 edit
First assertion of Freedom of association in The Kingdom of Bhutan is mentioned in the Constitution of Bhutan of 2008, enacted July 18th under Article 7(12) https://www.nationalcouncil.bt/assets/uploads/docs/acts/2017/Constitution_of_Bhutan_2008.pdf
Bolivia 🖉 edit
First assertion of Freedom of association of Bolivia is mentioned in the Constitution of 2009 of the Plurinational State of Bolivia under Chapter III, Section I, Article 21 (4) https://www.constituteproject.org/constitution/Bolivia_2009
Bosnia and Herzegovina 🖉 edit
First assertion of Freedom of association in Bosnia and Herzegovina is first mentioned in the Constitution of the Federation of Bosnia and Herzegovina of 1995 under Chapter II, Article 2, Section 3(i) https://advokat-prnjavorac.com/legislation/constitution_fbih.pdf
Botswana 🖉 edit
Chapter 2 of Botswana’s Constitution ( 1966) guarantees “freedom of conscience, of expression and of assembly and association.”
Brazil 🖉 edit
Brazil’s constitution ( 1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that:
- there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;
- creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations;
- associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;
- no one can be compelled to join an association or to remain in one;
- when expressly authorized, associations have standing to represent their members judicially and extrajudicially
Brunei 🖉 edit
Bulgaria 🖉 edit
Burkina Faso 🖉 edit
Burundi 🖉 edit
Cambodia 🖉 edit
Cameroon 🖉 edit
Canada 🖉 edit
Chapter 345 Section 5 of Saskatchewan’s Bill of Rights ( 1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”
Part 1 of the Canadian Bill of Rights ( 1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.
Cape Verde 🖉 edit
Central African Republic 🖉 edit
Chad 🖉 edit
Chile 🖉 edit
China 🖉 edit
Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) stated that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.” https://archive.org/details/jstor-2212590/page/n1/mode/2up
Under the current government of China, Article 35 of the 2018 Constitution of the People’s Republic of China states: “Citizens of the People’s Republic of China shall enjoy freedom of speech, the press, assembly, association, procession and demonstration.” http://www.npc.gov.cn/englishnpc/constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml
Colombia 🖉 edit
Comoros 🖉 edit
Costa Rica 🖉 edit
Croatia 🖉 edit
Cuba 🖉 edit
Cyprus 🖉 edit
Czech Republic 🖉 edit
Democratic Republic of the Congo 🖉 edit
Denmark 🖉 edit
Djibouti 🖉 edit
Dominica 🖉 edit
Dominican Republic 🖉 edit
East Timor 🖉 edit
The first assertion of association in East Timor comes in their Constitution, ratified on May 20, 2002. The right comes in Part II, Title II, Section 42 (“Constitution of the Democratic Republic of Timor-Leste”, 2002). 2002. Constitution of the Democratic Republic of Timor-Leste. May 20. http://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf.
Ecuador 🖉 edit
The first assertion of association in Ecuador comes in the Constitution of 1869, ratified on August 11. The right comes in Title XI, Article 109 (“Constitución de 1869”, 1869). The current Constitution, ratified in 2008, asserts the right in Article 66 (“Ecuador 2008 (rev. 2021) Constitution”, 2021). 1869. “Constitución de 1869.” ConstitutionNet. August 11. 2021. “Ecuador 2008 (Rev. 2021) Constitution.” 2021. ConstitutionNet. https://www.constituteproject.org/constitution/Ecuador_2021?lang=en.
Egypt 🖉 edit
The first known assertion of the right to association in Egypt was in the Royal Decree No. 42 of 1923, which established a Constitutional system of government in monarchical Egypt. The right is established in Part II, Article 21 (“Royal Decree No. 42 of 1923”, 1923). 1923. Royal Decree No. 42 of 1923. https://constitutionnet.org/sites/default/files/1923_-_egyptian_constitution_english_1.pdf. ... further results
Is the identification of this right associated with a particular era in history, political regime, or political leader? 🖉 edit
This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s , writers such as Mill and Leo XIII pushed the idea into the mainstream.
Is there another noteworthy written source from the past that mentions this right? 🖉 edit
Pope Leo XIII forcefully argued for free association in Section 51 of Rerum novarum ( 1891) , an extremely influential text in Catholic thought.
"Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them."
What specific events or ideas contributed to its identification as a fundamental right? 🖉 edit
An array of historical events have contributed to the identification of the right to freedom of association as a fundamental right ranging from the red scare during the Cold war, guilt by association laws, and the dismantling of legislation permitting the existence of racial segregation. A specific event that contributed to the identification of freedom of association as a fundamental right was the emergence of the Civil Rights Act of 1964; this enactment historically marked the end of segregation and legally prohibited the discrimination of people on the basis of race, ethnicity, gender or religious affiliation. After this act was enacted into law, people living in the American South were free to associate with anybody regardless of their racial or ethnic identity. Although the Civil Rights act was an example of legal identification of the freedom of association as a fundamental right, this was not the first time in history that association was debated over whether or not it constituted a right. The introduction of the acknowledgment of the right to freedom of association begins with the existence of guilt by association laws, as well as labor union provisions. These legal prohibitions restricting an individual from freely exercising their right to association with people of their choosing point to the significance of the legal precedent permitting the right to freedom of association to remain protected under law.
An example of an event that led to the classification of the right to freedom of association as impenetrable liberty under the law is drawn from a ruling that was decided in the early 20th century but drew upon a case from the 1890s to point out the precedent that the right to freedom of association had under Missouri state law. “The distinction [of the right to freely associate] was of some significance in the criminal syndicalism cases of the early twentieth century precisely because the Missouri Supreme Court had three decades earlier (in 1896) invalidated a St. Louis vagrancy ordinance that sought to forbid residents from “knowingly...associat-[ing] with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, bawds, prostitutes or lewd women or gamblers, or any other person, for the purpose or with the intent to agree, conspire, combine or confederate, first, to commit any offense, or, second, to cheat or defraud any person of any money or property.” It was here, in a context far removed from public meetings and speeches, that lawyers and judges first considered a right to freedom of association.” (Whittington, 2008, pg. 81). This specific analysis of the documented Missouri Supreme Court invalidation placed upon the St. Louis' vagrancy ordinance in 1896 underlined an imperative element to the right to freely associate; a state cannot legally abridge someone from willingly associating with people that are assumed to have a negative reputation or past history within the legal system. This legal precedent solidified the right to freedom of association as a federally protected right; prohibition of the freedom to exercise an individual’s right to freedom of association would result in federal action against a state that chose to interfere.
Although the freedom to associate with people freely can include restrictions placed on an individual, there are indeed group prohibitions under the right to freedom of association. “Notions of political discrimination in the public workplace derived initially from the Cold War era in a series of cases dealing with loyalty oaths. Loyalty oath cases derived from the fear of the spread of Communism after the Russian Revolution in 1917. During this time and thereafter, many laws were passed in the United States which sought to limit the ability of Communists or Communist sympathizers from gaining government employment and undermining the government. In particular, numerous federal and state laws were passed prohibiting the holding of public employment by those who refused to swear that they had not had any connection with the Communist Party.” (Secunda, 2008, pg. 351). When the US government chose to reinforce fierce associative laws prohibiting the free exercise of choice to associate in groups with people that held different political ideological beliefs, the federal right to freedom of association was subjunctively infringed upon. During a volatile time for the US, while fighting against communist encroachment, the right to freedom of association was more or less viewed as something that could be used as a tool or weapon. By prohibiting the association of people in the US and Communists or supporters of the communist party, the US government was sending a clear message to those who aligned themselves with communism, that they would not be welcome to share their beliefs with other people through threats of blackballing or guilt by association.
An example of ideological group association that was upheld as a right to the freedom of association occurred in 1984, in of Roberts v. US Jaycees case. “Moreover, group expression is deemed essential in a democratic society to preserve political and cultural diversity and to protect unpopular views from majoritarian control.” (pg. Jameson, 1985, 1065). This idea of group expression extends beyond intimate associations, in the Supreme Court case Roberts v. United States Jaycees, the national organization of US Jaycees limited their full membership status to men aged eighteen to thirty-five; and subsequently prohibited women and older men in the organization from being eligible for full-time memberships. Justice William J. Brennan ultimately ruled that the inclusion of women and older men in ‘associate’ memberships constituted an acknowledgment of membership status. Thus the Jaycees had no legal right to exclude them from associating with the organization as full-time members. This ultimately affirmed the state of New Jersey’s court decision to institute an antidiscrimination policy within the bylaws of the US Jaycees membership requirements. “In Roberts v. United States Jaycees, the Supreme Court reversed, holding that the state’s interest in eliminating gender-based discrimination justified the impact that requiring the Jaycees to admit women may have on the male members’ freedom of association.” (Jameson, 1985, pg. 1058). Although the U.S. Jaycees were a private organization, the prior inclusion of women and older men as part-time members led the court to rule in favor of the NJ state decision, the Jaycees could not legally restrict women from associating themselves as full-time members within the Jaycees organization.
A situation that brought to light forceful infringements on the right to freedom of association occurred in the 2000s, following the exposure that the Boy Scouts of America excluded a scoutmaster from being a part of the organization after learning of his sexual orientation. “Boy Scouts of America v. Dale, 2000, US Supreme Court struck down this application of New Jersey’s anti-discrimination law on the ground that forcing the Scouts to allow homosexuals to be members and scoutmasters would alter the Scouts’ “message” and thus violate their First Amendment right of freedom of expressive association.” (Alexander, 2008, pg. 6). Due to the nature of the scout’s organizational message, specifically mentioning their goal to “instill clean and straight moral values”, the Supreme court ruled in favor of the organization’s right to freely associate with those that aligned with their moral values. This particular ruling signifies the dichotomy within the right to freedom of association; a private organization can restrict members from joining if their personal associations go against their organization’s message and central core tenets. The difference between this case and that of the US Jaycees case was rooted in how the organization viewed members. Boy Scouts of America subjectively denied homosexuals entry from their scout memberships and the entire program, whereas Jaycees had already included women and older men in their associative memberships within the organization. Thus, the supreme court aligned its rulings with factual precedent; if a state interfered with an organization's right to associate with those who they chose, then the federal government would step in and uphold the right to freedom of association as long as the provisions of membership were not violated. Therefore, it did not violate the Jaycees' right to freedom of association by allowing women and older men to move from part-time members to full-time. However, with BSOA, their organization’s values and the core central message would have been infringed upon if the court demanded that the Boy Scouts accept homosexuals as scout leaders and members.
A circumstance in history where the right to the freedom of political association was upheld by the Supreme Court followed the exercise of discriminatory voting blocs by the Democratic party in Texas. “In Terry [Terry v. Adams, 1953], the Court prohibited a county in Texas from giving effect to what amounted to (successful) racial bloc voting. Democrats far outnumbered Republicans in the county, and thus the Democratic primary winners always prevailed in the general elections for county offices. Further, white Democrats appreciably outnumbered black Democrats within the county’s Democratic Party. Although the Court in one of the earlier White Primary cases had forced the Democratic Party in Texas not to discriminate against black voters in its primaries —which, after all, were run by the state itself out of tax revenues—and the Democratic primary in this county was indeed open to black voters, the white Democrats organized themselves into the Jaybird Club and held their own, privately supported “pre-primary primary.” (Alexander, 2008, pg. 5). The right to freedom of association does not necessarily extend to the right to freely exclude an entire group of people from a public political organization through the use of racial bloc voting. The Democratic party was prohibiting the right to freedom of association by not allowing Black voters to have a choice of whether or not they wanted to associate themselves with the candidate that the Jaybirds had elected.
Historical events that contributed to a widespread belief in the importance of the right to freedom of association can be shown from the decision in the Supreme Court case Loving v. Virginia; decided in 1967, this case determined that Southern states were legally required to allow interracial marriages to be permitted under law. The Loving decision brought forth a significant argument in favor of the right to freedom of association, a state could not legally abridge the right to freely associate with people in intimate capacities.
The right to freedom of group expression underlines the exceptions within precedent regarding the exercise of group political identities or participation with associative organizations. “Specifically, these cases dealt with the so-called "spoils system," or political patronage, which rewards public employment based on loyalty to a given political party. In Elrod v. Burns, for example, the plurality decision written by Justice [William] Brennan found that Illinois public employees, who were non-confidential, non-policymaking employees, could not be fired merely because of their partisan political affiliation." (Secunda, 2008, 352). The Burns decision highlights an interesting exception to the right to freedom of association, although the spoils system was legal under the Constitution, the use of political patronage against state employees for their political identity association was a direct infringement upon an individual’s exercise of the right to freely associate. In this particular IL public school, employees found themselves penalized for choosing to associate themselves with a particular political party or organization based on the principle that the state of IL deemed it appropriate to fire employees based on their political associations.
Another example of protecting the right to freely associate intimately with another person is underlined by the decision in Lawrence v. Texas. In 2003, the Supreme court struck down a TX sodomy law as a violation of the Fourteenth Amendment. In an attempt to dictate the specific terms under the right to freedom of association, TX had formed a sodomy law prohibiting the free exercise of intimate forms of association. “‘Bowers had held that there was no constitutional right to engage in homosexual sodomy.' In overturning Bowers, Lawrence's central holding was that the Texas sodomy statute at issue furthered no legitimate state interest which could justify the intrusion into the personal and private life of the individual. The most important constitutional innovation wrought by this holding is the apparent attachment of some form of heightened scrutiny to the right to be free from decisional interference in matters of an intimate nature. Indeed, implicit in this holding is the need to balance individual privacy interests against legitimate and substantial state interests.” (Secunda, 2008, pg. 357). The significance of an intrusion on private associations in regards to exercising the freedom of association as a fundamental right divides the debate in half, a state government cannot abridge the freedom of association when deciding who someone can intimately be associated with under federal law. A legitimate state interest would need to be produced in order for an intimate association to be prohibited under TX state legislation.
Alexander, Larry. "What is Freedom of Association, and what is its denial?." Social Philosophy and Policy 25, no. 2 (2008): 1-21.
Epstein, Richard A. "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Stanford Law Review 66 (2014): 1241.
Inazu, John D. "The Unsettling “Well-Settled” Law of Freedom of Association”, 2010.
Jameson, Ann H. "Roberts v. United States Jaycees: Discriminatory Membership Policy of a National Organization Held Not Protected by First Amendment Freedom of Association." Catholic University Law Review 34, no. 4 (1985): 1055-1086.
Secunda, Paul M. "Reflections on the Technicolor Right to Association in American Labor and Employment Law." Kentucky Law Journal 96, no. 3 (2008).
Whittington, Keith E. 2008. “INDUSTRIAL SABOTEURS, REPUTED THIEVES, COMMUNISTS, AND THE FREEDOM OF ASSOCIATION.” Social Philosophy and Policy 25 (2). Cambridge University Press: 76–91.
When was it generally accepted as a fundamental, legally-protectable right? 🖉 edit
The Freedom of Association only became formally recognized in the US in 1958 with the landmark NAACP v Alabama SCOTUS decision (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Just after the Brown v Board of Education ruling the NAACP became incredibly active in Alabama. When the state tried to demand a list of the organization's members, the NAACP refused. Freedom of Association can be found in the majority opinion where Justice John Marshall Harlan II wrote “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.” (“NAACP v. ALABAMA, 377 U.S. 288” 1964). Since the NAACP was allowed to organize their political group as an association and were afforded the privacy and rights they argued in the case. Prior to this, this right can be found in several U.S. cases leading up to the 1958 opinion. The Supreme Court did not always recognize Freedom of Association however. In 1886, a case centered on the forming of state militias, the Court declared that the government had the ability to regulate and prohibit associations “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies.” (Cornell Legal Information Institute). The right to protest is clearly laid out here, while the Freedom of Association is denied. Later on, in a 1945 case, the Court applied the freedom of assembly stating, “[i]t was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” This allowed unions to discuss benefits and consequences of organizing (“Thomas v. Collins, 323 U.S. 516 (1945)”). Throughout the 1950s, the Court started to refer to the freedom of association as a separate but related freedom, close to speech and assembly, found in the First Amendment. By 1958, the Court deemed it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties like the freedom of speech. (Cornell Legal Information Institute). Internationally, the earliest autonomous associations were founded by religion. The Roman Catholic Church was the most important institution in medieval Western Europe. It kept its own organization and self-government, even in the several states where it served as the recognized religion (“Freedom of Association: History”). They encouraged trade associations, guilds for artisans, and other associations, frequently with the consent of the nation's ruler, who was typically a monarch (“Freedom of Association: History”). Outside of the US, one of the first instances of the debate regarding Freedom of Association in terms of organized labor was in Great Britain. At the end of the 18th century, the Comination Acts suppressed attempts to organize unions (“Freedom of Association: History” n.d.). This caused radical reformers to protest, driving workers to violence. Eventually, the government backed the repeal of the Acts in 1824. This repeal served as Britain’s first major increase in the ability to organize and unionize. Despite some infringements on labor rights in the 1980s and 1990s, the Trade Union Congress is still a strong force in the United Kingdom’s politics and economy (“Freedom of Association: History”). This was an early implication through labor rights that Freedom of Association existed. In order to address bad working conditions and social unrest, the ILO (International Labor Organization) devised a tripartite organization that included representatives from industry, labor, and government (“Freedom of Association: History”). The International Labor Organization (ILO) approved Convention No. 87 on freedom of association in 1948, and Convention No. 98 on the right to collectively bargain in 1949. As of 2013, 152 countries had ratified Convention No. 87, and 163 had ratified Convention No. 98, demonstrating how highly accepted these treaties are around the world (“Freedom of Association: History”). There are eight fundamental ILO conventions, some of which forbid child labor, forced labor, and employment discrimination. Only 14 of the 189 international standards treaties have been ratified by the US Senate, and only two of the eight core agreements (on forced labor in 1991 and child labor in 1999) have been ratified (“Freedom of Association: History”). On the other hand, nations in the former Soviet Union approved ILO treaties without ever putting them into use. Communist nations argued that since the Communist Party and its affiliated labor organizations represented workers' interests, there was no need for free trade unions, which are highly specific to certain trades (“Overview of Freedom of Association”). Thus, Soviet trade unions were the antithesis of free association and an "anti-trade union" paradigm. The official unions didn't shield workers from exploitation; instead, they made them labor longer and harder to satisfy government demands (Constitution Annotated). In democratic nations, private companies occasionally adopted a similar strategy known as "company unionism," but the Soviet Union's methods were systematic in nature and a crucial component of the totalitarian regime. The Soviet Union imposed its model on its Eastern European satellite governments and exported it to other communist nations (Constitution Annotated). The largest country still using a Communist Party-controlled official union structure is the People's Republic of China (Constitution Annotated). One of the ILO's greatest historical contributions was the inspiration and assistance it provided to Poland's Solidarity movement, which saw millions of workers rise up starting in 1980 and demand the implementation of Conventions 87 and 98 as well as the establishment of the right to form free unions (International Labor Organization 1982). As a result of the movement's success—10 million workers joined within a month of Solidarity's founding—a free trade union was officially recognized for the first time in a Communist nation. The Polish Solidarity Revolution had a tremendous impact on the entire Soviet bloc (International Labor Organization 1982). Solidarity's success was a rejection of the previous regimes. After seven years of nonviolent protest, Polish workers mounted a nationwide strike that compelled the government to re-legalize Solidarity and concede to partially free elections in June 1989, which ultimately led to the overthrow of the government (International Labor Organization 1982). Soon after, the Soviet Union as a whole disintegrated, paving the way for the rise of several new republics. Small clandestine publications that explained to employees their rights under ILO treaties served as the foundation for the entire operation (International Labor Organization 1982).
Constitution Annotated. “Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
Cornell Legal Information Institute.“Overview of Freedom of Association.” LII / Legal Information Institute. Accessed September 11, 2023a. https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association.
“PRESSER v. STATE OF ILLINOIS.” LII / Legal Information Institute. Accessed September 11, 2023b. https://www.law.cornell.edu/supremecourt/text/116/252.
“Freedom of Association: History.” Democracy Web. Accessed September 11, 2023. https://democracyweb.org/freedom-of-association-history.
International Labor Organization. 1982. “Interim Report - Report No 217, June 1982.” June 1982. https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2900704.
“NAACP v. ALABAMA, 377 U.S. 288 (1964).” FindLaw. Accessed September 11, 2023. https://caselaw.findlaw.com/court/us-supreme-court/377/288.html.
“Overview of Freedom of Association.” Library of Congress. Accessed September 11, 2023. https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/.
“Thomas v. Collins, 323 U.S. 516 (1945).” Justia Law. Accessed September 11, 2023. https://supreme.justia.com/cases/federal/us/323/516/.