Also known as: expressive association · freedom of expressive association
Written by attorneys — see sources below.
A First Amendment doctrine protecting groups formed to advance shared ideas from government compulsion to admit members whose inclusion would significantly alter or undermine the group's message. The doctrine shields expressive autonomy when forced participation would dilute the organization's ability to convey its chosen viewpoint. Protection is not absolute and yields when a narrowly tailored regulation serves a compelling interest without materially impairing advocacy.
Ella Emerson leads a youth organization dedicated to teaching traditional moral values. State officials order the group to retain an openly gay volunteer whose presence conflicts with the organization's stated beliefs about conduct. The order is set aside because it would force the group to convey a message at odds with its core teachings.
Enzo Eastwood runs a large professional networking group open to the public. The state applies an antidiscrimination statute requiring admission of women as full members. The requirement stands because the group remains able to advocate its views unchanged after compliance.
Evelyn Ellison directs a student religious society that requires officers to affirm a statement of faith. The university revokes recognition for refusing to admit students who reject the statement. The revocation is upheld because the policy applies uniformly and does not target the group's viewpoint.
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 caseEva Espinosa chairs a political party that objects to state rules listing candidates without party consent. The party claims the listing forces association with unwanted nominees. The rule is sustained because it does not compel the party to endorse or convey any 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 caseEsme Ellington leads a consortium of law schools that declines to host military recruiters on campus. Federal funding is conditioned on equal access. The condition is upheld because it regulates conduct rather than compelling the schools to express any particular message.
The Forum for Academic and Institutional Rights, Inc. (FAIR) is an association of law schools and law faculties whose members have adopted policies expressing opposition to discrimination based on sexual orientation. These members objected to the military's policy regarding homosexuals in the military and sought to restrict military recruiting on their campuses. In response to such restrictions by law schools, Congress enacted the Solomon Amendment, which denies specified federal funds to institutions of higher education that do not provide military recruiters access equal to that provided other recruiters. In 2003, FAIR filed suit against enforcement of the Solomon Amendment and sought a preliminary injunction. At that time, the statute prevented the Department of Defense from providing funds to institutions that prohibited or prevented military recruiters from gaining entry to campuses. After the September 11, 2001 attacks, the Department of Defense had adopted an informal policy requiring equal access in quality and scope to students. Some law schools had previously arranged for military recruiters to interview on the undergraduate campus to comply while maintaining their policies. The District Court for the District of New Jersey denied the preliminary injunction. The court concluded that FAIR had not established a likelihood of success on the merits of its claims. Congress subsequently amended the Solomon Amendment to codify the equal access requirement, specifying that military recruiters must receive access at least equal in quality and scope to that provided any other employer. FAIR appealed to the Court of Appeals for the Third Circuit. A divided panel of the Third Circuit reversed the District Court and remanded with instructions to enter a preliminary injunction against enforcement of the Solomon Amendment. The Supreme Court granted certiorari to review the Third Circuit's decision.
View caseEric Espinoza owns a theater that stages nude performances as artistic expression. A state statute bans public nudity. The ban is sustained because it regulates conduct without regard to whether the nudity conveys a message.
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 caseThe law violates the right when forced inclusion would significantly burden the group's ability to convey its chosen message. Courts examine whether the organization's expressive purpose is sincere and whether the added member would alter that message. If the burden is substantial, the state's interest in nondiscrimination does not override the protection.
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Large, nonselective civic groups receive less protection because they function more like public accommodations. Small, selective groups with intimate or focused expressive purposes receive stronger protection. Courts look at membership criteria, recruitment practices, and whether the group holds itself out to the public.
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A university may impose a neutral nondiscrimination policy on recognized groups when the policy does not target religious or expressive viewpoints. The policy must apply uniformly and leave the group free to maintain its beliefs outside official recognition. Viewpoint discrimination against religious groups triggers stricter scrutiny.
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…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 ,…