Freedom of association

Overview

Freedom of association is a right of an individual to come together with other individuals and collectively express, promote, pursue and defend common interests. The right to freedom of association has been included in a number of national constitutions and human rights instruments, including the United States Constitution and the European Convention on Human Rights.

The right to freedom of association is sometimes used interchangeably with the freedom of assembly. More specifically the freedom of assembly is understood in a political context, although depending on the source (constitution, human rights instrument, etc.) the right to freedom of association may be understood to include the right to freedom of assembly.

U.S. Constitution

While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment does not make specific mention of a right of association. Nevertheless, the U.S. Supreme Court held in NAACP v. Alabama. that the freedom of association is an essential part of freedom of speech because, in many cases, people can engage in effective speech only when they join with others. The Supreme Court has found the Constitution to protect the freedom of association in two cases.

1. Intimate Associations. A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are known as "intimate associations." The paradigmatic "intimate association" is the family.

2. Expressive Associations. Expressive associations are groups that engage in activities protected by the First Amendment — speech, assembly, petitioning government for a redress of grievances, and the free exercise of religion.

Limitations

However, the implicit First Amendment right of association in the U.S. Constitution has been limited by various court rulings. For example, it is illegal in the United States to consider race in the making and enforcement of private contracts other than marriage or taking affirmative action. This limit on freedom of association results from Section 1981 of Title 42 of the United States Code, as balanced against the First Amendment in the 1976 decision of Runyon v. McCrary.

Runyon held that the defendant private schools were free to express and teach their views, such as white separatism, but could not discriminate on the basis of race in the provision of services to the general public. So, if the plaintiff African-American children wished to attend such private schools, and were clearly qualified in all respects (but race) and were able to pay the fees, and were willing to attend despite the fact that the school's professed principles were inconsistent with admitting them, then the schools were required by Section 1981 to admit them. This doctrine rests on the interpretation of a private contract as a "badge" of slavery when either party considers race in choosing the other.