ConLaw: Freedom of Association and Belief

Nature of Freedom of Association

Not explicitly mentioned but implied from existing rights. The government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups. However, this right is not absolute.

Prohibitions on Membership

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group, it must be proven that the person: (1) actively affiliated with the group; (2) knew of the group’s illegal activities; and (3) associated with the group with the specific intent to further those illegal activities

Disclosure of Membership

Laws that require disclosure of group membership must meet strict scrutiny if such disclosure would chill the right to freedom of association

Membership Discrimination

Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Regulation of Electoral Process

The court uses a balancing test to determine whether a regulation of the electoral process is valid: if the restriction on 1A activity is severe, strict scrutiny applies. If the restriction is reasonable and nondiscriminatory, it will generally be upheld

Limits on Contributions, generally

A state limiting election campaign contributions is subject to intermediate scrutiny. To prevent corruption or the appearance thereof, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. However, the government may not limit the amount of money that may be spent to support or oppose a ballot referendum. There is an exception for groups or corporations formed specifically to participate in the political debate.

Campaign Contribution Aggregation

The government may not limit the aggregate amount one person or entity contributes to political candidates or committees during an election, but it may limit the amount given to a single candidate.

Limits on Campaign Expenditures

Laws may not limit the amount that a candidate spends on a political campaign. The government may not limit the amount that a person spends to get a candidate elected, as long as the expenditures are not contributed directly to the candidate or coordinated with those of the candidate

Regulation of Core Political Speech

Regulation of “core political speech” such as electioneering or distributing campaign literature must satisfy strict scrutiny. However, a state may ban personal solicitation of campaign funds by judicial candidates. A political ad will be considered core political speech unless the only reasonable interpretation is that the ad is an appeal to vote for or against a particular candidate.

Restraints on Speech Activities of Government Employees

A government employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern

Government Employee Speech: No public concern

If the speech is not made pursuant to an employee’s official duties and the speech does not involve a matter of public concern, the government employer can punish the employee if the speech was disruptive of the work environment

Government Employee Speech: Matter of Public Concern

If speech is not made pursuant to an employee’s official duties and the matter IS of public concern, the courts will balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service

Government Employee Campaign Participation

The federal government may prohibit federal executive branch employees from taking an active part in political campaigns

Bans on Receiving Honoraria

A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate 1A when applied to rank and file employees. Such provisions can only be justified if the government can show that the impact the speech would have on government operations outweighs the employees’ rights and the rights of their potential audience

Government Employee Patronage

A public employee may not be hired, fired, promoted, transferred, or the like, based on party affiliation or political views except in policymaking positions were such considerations are relevant

Gov Employee Loyalty Oaths

The government may require employees to take loyalty oaths so long as the oaths are not overbroad or vague

Gov Employee Oath Overbreadth

An oath cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine

Gov Employee Oath Vagueness

An oath requiring employees to support the Constitution and oppose the unlawful overthrow of the government is valid. An oath requiring public employees to support the flag is invalid because of potential religious belief conflicts

Gov Employee Disclosure of Associations

The government may not force disclosure of every organizational membership in exchange for government employment or other benefit. It may inquire only into those activities that are relevant to the employment or benefit sought. A person can invoke 5A if the disclosure would be incriminating

School Sponsorship of Extracurricular Activities

SCOTUS has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular clubs. The test used in LPF cases applies: sponsorship of association can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest