Also known as: expressive associations · freedom of expressive association · right of expressive association
Written by attorneys — see sources below.
A First Amendment protection that shields groups from compelled inclusion of members when such inclusion would significantly burden the group's ability to advocate its viewpoints. The protection applies when the group engages in expressive activity and the forced member would alter the message the group seeks to convey. It yields only when a state demonstrates a compelling interest and shows that enforcement would not meaningfully impair the group's expression.
Elise Everly, an openly gay volunteer, sought to serve as an assistant leader in a regional youth organization that teaches traditional moral values to adolescents. The organization denied her application after learning of her public advocacy. The denial preserved the group's ability to convey its chosen message without contradiction from leadership.
Elliot Edmonds led a large professional networking association that hosted open career events for anyone interested in business development. The group refused to admit female applicants on the ground that their presence would dilute a claimed tradition of male leadership. A state agency enforced an antidiscrimination statute, and the order stood because the association's size and open recruitment practices meant compliance would not impair its advocacy capacity.
Elena Estrada chaired a state political party that objected to a new primary format allowing candidates to list party preference without party approval. The party claimed the format would force it to associate with candidates whose views it rejected. The challenge failed because the format did not compel the party to accept the candidates as members or alter its internal message.
In 2004, voters in the State of Washington passed an initiative changing the State’s primary election system. The People’s Choice Initiative of 2004, or Initiative 872 (I–872), provides that candidates for office shall be identified on the ballot by their self-designated party preference, that voters may vote for any candidate, and that the top two votegetters for each office, regardless of party preference, advance to the general election. For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary. From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election. After the decision in California Democratic Party v. Jones, the Court of Appeals for the Ninth Circuit struck down Washington’s primary as materially indistinguishable from the California scheme. The Washington State Grange promptly proposed I–872 as a replacement. It passed with nearly 60% of the vote and became effective in December 2004. Immediately after the State enacted regulations to implement I–872, the Washington State Republican Party filed suit against county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs. The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county auditors as defendant. The United States District Court for the Western District of Washington granted the political parties’ motions for summary judgment and enjoined the implementation of I–872. The Court of Appeals affirmed the district court judgment.
View caseEdgar Evers organized an annual cultural parade that selected participants to maintain a specific historical theme. A group seeking to march with a conflicting message sued under a public accommodations statute after being excluded. The organizer prevailed because forced inclusion would have changed the parade's overall expressive content.
The South Boston Allied War Veterans Council, an unincorporated association of individuals elected from South Boston veterans groups, has organized the annual St. Patrick's Day-Evacuation Day Parade since 1947. Mayor James Michael Curley granted the Council authority to organize and conduct the parade. Every year since then the Council has applied for and received the sole permit for the event. The parade has at times included as many as 20,000 marchers and drawn up to 1 million spectators. No other applicant has ever applied for that permit. In 1992 gay, lesbian, and bisexual descendants of Irish immigrants joined together with other supporters to form the Irish-American Gay, Lesbian and Bisexual Group of Boston, known as GLIB. GLIB sought to march in the parade to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The group also wanted to demonstrate that such men and women exist among those descended from Irish immigrants and to express solidarity with similar groups seeking to march in New York's parade. The Council denied GLIB's application. GLIB obtained a state-court order and marched uneventfully among the 10,000 participants and 750,000 spectators that year. In 1993 the Council again refused GLIB's application. GLIB and some of its members sued the Council, its leader John J. Hurley, and the City of Boston. The suit alleged violations of the Massachusetts public accommodations statute, which prohibits any distinction on account of sexual orientation in places of public accommodation. The state trial court found that the parade had traveled the same basic route for at least the past 47 years. The court also found that the Council had no written criteria and employed no particular procedures for admission. The Council had occasionally admitted groups that simply showed up and did not generally inquire into applicants' messages. The parade contained an eclectic variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes. The trial court concluded that the parade was a public accommodation because of the lack of genuine selectivity in choosing participants. It found that GLIB had been excluded because of its members' sexual orientation. The court ordered that GLIB participate on the same terms as other groups. The Supreme Judicial Court of Massachusetts affirmed the trial court's findings that the parade lacked any specific expressive purpose and that exclusion rested on sexual orientation. The United States Supreme Court granted certiorari to review petitioners' claim that the state courts' application of the public accommodations law violated their First Amendment rights.
View caseEdith Eberhardt led a campus religious society that required officers to affirm a statement of faith on marriage and sexuality. The university revoked official status after the society declined to admit students who could not sign the statement. The revocation was upheld because the all-comers policy regulated access to a limited public forum without directly compelling the group to alter its internal message.
Hastings College of the Law is a public law school within the University of California system. It maintains a Registered Student Organization program that grants official recognition to student groups. Recognized groups receive benefits including eligibility for school funds drawn from mandatory student activity fees. They also receive use of school facilities and channels of communication such as bulletin boards and email lists. Finally, they receive permission to use the school's name and logo. In exchange, all RSOs must comply with Hastings' Nondiscrimination Policy. Hastings interprets this policy to require every recognized group to accept any student as a member or leader regardless of status or beliefs. At the beginning of the 2004-2005 academic year, Hastings students formed the Christian Legal Society chapter by affiliating with the national Christian Legal Society. The chapter adopted bylaws requiring members and officers to sign a Statement of Faith. The bylaws also required members to conduct their lives in accordance with prescribed principles. One such principle is the belief that sexual activity should occur only within marriage between a man and a woman. CLS interpreted its bylaws to exclude students who engage in unrepentant homosexual conduct. It also excluded students who hold religious convictions different from those in the Statement of Faith. On September 17, 2004, CLS submitted an application for RSO status together with the required bylaws. Hastings rejected the application because the bylaws excluded students on the basis of religion and sexual orientation. CLS formally requested an exemption from the Nondiscrimination Policy. Hastings declined the request. CLS then filed suit under 42 U.S.C. §1983 against Hastings officials. The suit alleged violations of its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. The parties later stipulated that Hastings requires all RSOs to allow any student to participate, become a member, or seek leadership positions regardless of status or beliefs. On cross-motions for summary judgment, the District Court for the Northern District of California ruled for Hastings. The Ninth Circuit affirmed in a brief opinion. The Supreme Court granted certiorari. After the denial of RSO status, CLS operated independently during the 2004-2005 academic year. It held weekly Bible studies, social events, lectures, and banquets. The number of students attending its meetings doubled the following year. Hastings offered CLS access to school facilities for meetings. It also offered generally available bulletin boards and chalkboards for announcements. However, CLS did not receive RSO-specific benefits.
View caseEmily Ellis operated a theater company that staged performances involving nudity as part of its artistic expression. A local ordinance required performers to wear minimal coverings during shows. The ordinance survived challenge because it regulated the manner of expression through a content-neutral rule rather than compelling the company to include unwanted participants.
Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage. Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings. Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling. In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings. Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States. It rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.
View caseA state may apply such a law when the group is large and nonselective and the regulation does not significantly impair the group's ability to communicate its message. The state's interest in eradicating discrimination must be compelling and the burden on expression must remain minimal.
The key inquiry is whether the unwanted member's presence would significantly affect the group's ability to advocate its chosen viewpoints. Courts examine the group's sincerely held objectives and whether inclusion would send a contradictory message to members and the public.
Protection is available but weaker for large, nonselective groups that hold themselves out to the public. Such organizations may be required to comply with neutral antidiscrimination rules when compliance leaves their advocacy capacity intact.
Organizers retain the right to control participant selection when inclusion would alter the event's overall message. This protection applies even on public streets if the event constitutes the organizers' own expressive activity.
…interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ right to freedom of expressive association. The state’s interest in eliminating discrimination is substantial, but that interest does not justify the state’s abridgment of the Boy Scouts’ constitutional rights. See Hurley ,…