Source/Freedom of Association - Revision history

Import-sysop: Import-sysop moved page Freedom of Association to Source/Freedom of Association: move to source

2023-01-04T13:47:31Z

Import-sysop moved page Freedom of Association to Source/Freedom of Association: move to source

← Older revision	Revision as of 13:47, 4 January 2023
(No difference)

Kbrard: /* Transcendentalism */

2022-08-03T17:41:27Z

Transcendentalism

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 ====Current Utilitarianism====
 ====Transcendentalism====
 ====Marxism====

Kbrard: /* Kantianism */

2022-08-03T17:40:17Z

Kantianism

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 ====Kantianism====
 ====German Idealism====
 ====Benthamite Utilitarianism====

96.255.63.46: /* Have political theorists or philosophers discussed the permissibility of exceptions to this right? */

2021-10-28T20:13:46Z

Have political theorists or philosophers discussed the permissibility of exceptions to this right?

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	The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.		The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.

			“John Locke, Two Treatises (1689) - Online Library of Liberty,” accessed June 19, 2020, https://oll.libertyfund.org/pages/john-locke-two-treatises-1689.

			Locke, John, “A Letter Concerning Toleration,” trans. William Pope, 1689, accessed at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/toleration.pdf, 9.

			Eric R. Claeys, “The Private Society and the Liberal Public Good in John Locke's Thought,” SSRN Electronic Journal, 2007, https://doi.org/10.2139/ssrn.1027965.

			“Constitution of the United States of America,” Bill of Rights Institute, October 3, 2019, https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE. 5

			“Right to Peaceful Assembly” (Law Library of Congress, 2014), https://www.loc.gov/law/help/peaceful-assembly/right-to-peaceful-assembly.pdf.

			John Stuart Mill, “Mill, ‘On Liberty,’” in The Routledge Philosophy Guidebook to Mill: On Liberty, ed. Jonathan Reiley (New York, NY: Routledge, 1998), 45.

			Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” The Yale Law Journal 74, no. 1 (1964): p. 1, https://doi.org/10.2307/794804

	===Should this right be limited when limiting it would jeopardize democratic norms?===		===Should this right be limited when limiting it would jeopardize democratic norms?===

96.255.63.46: /* Is this right at times curtailed by private actors? */

2021-10-28T20:12:37Z

Is this right at times curtailed by private actors?

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	Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.		Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.

			Lynne Chandler Garcia, “Hague v. Committee for Industrial Organization,” Hague v. Committee for Industrial Organization, accessed June 16, 2020, https://mtsu.edu/first-amendment/article/619/hague-v-committee-for-industrial-organization.

			David L Hudson, “Public Forum Doctrine \| The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/824/public-forum-doctrine.

			“Madsen v. Women's Health Center, Inc. \| The First ...,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/10/madsen-v-women-s-health-center-inc.

			Kevin Francis O'Neill, “Time, Place and Manner Restrictions,” Time, Place and Manner Restrictions, accessed June 17, 2020, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

			“Right to Peaceful Assembly: United States \| Law Library of Congress,” accessed June 19, 2020, https://www.loc.gov/law/help/peaceful-assembly/us.php.

	===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===		===Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?===

96.255.63.46: /* Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? */

2021-10-28T20:11:42Z

Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?

← Older revision		Revision as of 20:11, 28 October 2021
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	Several cases have tested the ability of governors to impose state-level martial law. In Moyer v. Peabody ( 1909), a case arose when the governor of Colorado imposed martial law to quell a labor dispute. The court held that, “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.” The court later elaborated that state declarations of martial law should be subject to a proportionality test - the remedy must directly relate to the problem it addresses (Feldman 1034). In Duncan v Kahanamoku (1946), the use of military tribunals in Hawaii after the attack on Pearl Harbour was invalidated. The Supreme Court held that under the Hawaiian Organic Act (this act gave the state the authority to institute martial law) the use of such tribunals is only allowed during a period of actual war. The court did, however, leave the possibility open that such action was constitutional (Feldman 1034-5).		Several cases have tested the ability of governors to impose state-level martial law. In Moyer v. Peabody ( 1909), a case arose when the governor of Colorado imposed martial law to quell a labor dispute. The court held that, “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.” The court later elaborated that state declarations of martial law should be subject to a proportionality test - the remedy must directly relate to the problem it addresses (Feldman 1034). In Duncan v Kahanamoku (1946), the use of military tribunals in Hawaii after the attack on Pearl Harbour was invalidated. The Supreme Court held that under the Hawaiian Organic Act (this act gave the state the authority to institute martial law) the use of such tribunals is only allowed during a period of actual war. The court did, however, leave the possibility open that such action was constitutional (Feldman 1034-5).
	France provides another good example of emergency power - it has Constitutional provisions providing for states of emergency and states of siege. Though precise statutory and constitutional justifications for restrictions have evolved over time (France has repeatedly replaced its constitution), it has long used emergencies to justify restrictions on freedom of association. During World War I, France prohibited protests and marches, and ordered the closure of gathering places such as bars and restaurants. France has instituted similar restrictions in response to later emergencies, such as a 1955 uprising in Algeria (Feldman 1031).		France provides another good example of emergency power - it has Constitutional provisions providing for states of emergency and states of siege. Though precise statutory and constitutional justifications for restrictions have evolved over time (France has repeatedly replaced its constitution), it has long used emergencies to justify restrictions on freedom of association. During World War I, France prohibited protests and marches, and ordered the closure of gathering places such as bars and restaurants. France has instituted similar restrictions in response to later emergencies, such as a 1955 uprising in Algeria (Feldman 1031).

			“Dennis v. United States \| The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/190/dennis-v-united-states.

			“Vietnam War \| The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/1101/vietnam-war.

			“Freedom of Association in the Wake of Coronavirus,” Freedom of Association in the Wake of Coronavirus § (n.d.).
			“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,” The United States Department of Justice, June 11, 2020, https://www.justice.gov/opa/pr/department-justice-files-friend-court-brief-support-free-speech-challenge-californias- covid.

			“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,” accessed June 19, 2020, https://www.msn.com/en-us/news/us/protesting-amid-the-coronavirus-crisis-massachusetts-officials-say-they-respec t-demonstrators-1st-amendment-rights-urge-them-to-take-health-precautions-though/ar-BB14VG4l.

	Momtaz:		Momtaz:

96.255.63.46: /* Millian Utilitarianism */

2021-10-28T19:30:09Z

Millian Utilitarianism

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	While Bentham’s free association is a political right, in On Liberty, Mill advocates for near-universal free association: “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” (Mill 1859, 16). In his introduction, Mill makes clear that his ideas of liberty come from utilitarianism, not natural rights, stating that, “I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being” (14).		While Bentham’s free association is a political right, in On Liberty, Mill advocates for near-universal free association: “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” (Mill 1859, 16). In his introduction, Mill makes clear that his ideas of liberty come from utilitarianism, not natural rights, stating that, “I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being” (14).


			On Liberty: https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf Schofield: https://core.ac.uk/download/pdf/1896809.pdf

	====Current Utilitarianism====		====Current Utilitarianism====

96.255.63.46: /* Benthamite Utilitarianism */

2021-10-28T19:29:51Z

Benthamite Utilitarianism

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	Bentham approached freedom of association as he did free expression: as a means of political advocacy and dissent. In Chapter IV Section 24 of A Fragment on Government, he advocates for “the liberty of public association; or the security with which malecontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.”		Bentham approached freedom of association as he did free expression: as a means of political advocacy and dissent. In Chapter IV Section 24 of A Fragment on Government, he advocates for “the liberty of public association; or the security with which malecontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.”


			A Fragment on Government: https://en.wikisource.org/wiki/A_fragment_on_government/Chapter_4

	====Millian Utilitarianism====		====Millian Utilitarianism====

96.255.63.46: /* Rousseau's Thought */

2021-10-28T18:56:21Z

Rousseau's Thought

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 ====Modern Capitalism====
 ====Rousseau's Thought====
 ====Kantianism====
 ====German Idealism====

96.255.63.46: /* What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right? */

2021-10-28T15:03:43Z

What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?

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	It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.		It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
	Boyd suggests several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258).		Boyd suggests several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258).

	Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right. The state constitutions mentioned in my original piece on freedom of association should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political).		Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right. The state constitutions mentioned in my original piece on freedom of association should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political).
	~~That freedom of assembly does not entail freedom of association is demonstrated by the court’s~~ opinion in NAACP v. ~~Alabama. The opinion~~ derives freedom of expressive association from a combination of speech, assembly, and the Fourteenth Amendment, not merely freedom of assembly. It states that, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. 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.”
			The opinion in NAACP v. Alabama derives freedom of expressive association from a combination of speech, assembly, and the Fourteenth Amendment, not merely freedom of assembly. It states that, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. 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: https://www.law.cornell.edu/supremecourt/text/357/449		NAACP v. Alabama: https://www.law.cornell.edu/supremecourt/text/357/449

	Meyer v. Nebraska: https://www.law.cornell.edu/supremecourt/text/262/390		Meyer v. Nebraska: https://www.law.cornell.edu/supremecourt/text/262/390

	Richard Boyd, “The Madisonian Paradox of Freedom of Association”: https://www.cambridge.org/core/journals/social-philosophy-and-policy/article/madisonian-parad ox-of-freedom-of-association/ABDB2F9951FD811C0AC84F76327EBACC ~~(I was able to access through UMD’s library)~~		Richard Boyd, “The Madisonian Paradox of Freedom of Association”:
			https://www.cambridge.org/core/journals/social-philosophy-and-policy/article/madisonian-parad
			ox-of-freedom-of-association/ABDB2F9951FD811C0AC84F76327EBACC

	List of key expressive association rulings:		List of key expressive association rulings: