Freedom of association is the
right to join or leave groups of a person's own choosing, and for the group to
take collective action to pursue the interests
of members., Freedom of Association, The Essentials of Human
Rights 18, states it involves coming together with other individuals and
collectively express, promote, pursue and defend common interests. It is both
an individual right and a collective
right, guaranteed by all modern and democratic legal systems,
including the United States Bill of Rights, article 11 of
theEuropean Convention on Human Rights and
the Canadian Charter of Rights and
Freedoms, and international
law, including articles 20 and 23 of the Universal Declaration of Human Rights,
and Conventions 87 and 98 of
the International Labour Organization.
Freedom of association is primarily
manifested through the right to join a trade union, free speech or debating societies, political
parties, or any other club or association such asreligious groups, fraternities,
or sport clubs.
It is closely linked with the freedom of assembly, particularly under
the US Bill of Rights. 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. However, often as a
condition under a legal stipulation, the courts and delegated officers of the
local jurisdiction, may impose restrictions on a convicted criminal in regards
to any of their rights waived under conditions and as a result of a guilty plea
or conviction. e.g., people with restraining orders, probationer's search and
seizure procedures, etc.
The general freedom to associate
with groups according to the choice of the individual, and for the groups to
take action to promote their interests, has been a necessary feature of every
democratic society. Because freedom of association necessarily recognizes
pluralistic sources of power and organisation, aside from the government, it
has been a primary target for repression by all dictatorial societies. In
the United Kingdom, all forms of
"combination" were prohibited and criminal, particularly worker
organisations, until theCombination Act 1825. After this, it was
still not until the Companies Act 1856, the Trade Union Act 1871 and the Criminal
Conspiracy and Protection of Property Act 1875 that companies
and then trade unions became generally lawful. In Germany, a similar set of
repressive laws were put in place against both trade unions and social democrat
organisations by the Bismarck government
under the Sozialistengesetze (the "Socialist
Acts") in 1878. These remained in force until 1890. In 1933, trade unions
were once again prohibited by the Fascist dictatorship
of Hitler's National Socialist party, and the existing
unions were nationalized and combined into a single government controlled German Labor Front. After World War Two, free
trade unions were quickly resurrected and guaranteed by the German Grundgesetz.
In the United States, trade unions were classified by
various state courts, at various times, as being in restraint of trade. Under the Clayton Act
1914 trade unions were given a general freedom to organize and
to act collectively to secure collective agreements, however further hurdles
were put in place until the National Labor Relations Act 1935 created
a comprehensive labor code.
In Italy the freedom of
association is enshrined in Article 18 of the Constitution, which states:
"Citizens have the right to form associations freely
and without authorization for those ends that are not forbidden by criminal
law. Secret associations and associations that, even indirectly, pursue
political aims by means of organisations having a military character shall be
forbidden."
The South African Constitution's Bill of
Rights enshrines the right to freedom of association in Section 18, which
states "Everyone has the right to freedom of association."
Furthermore, Section 17 states "Everyone has the right, peacefully and
unarmed, to assemble, to demonstrate, to picket and to present petitions",
effectively enshrining the rightfreedom of assembly. Workers' right to freedom
of association in terms of the right to form trade unions and collective
bargaining is recognized separately, in Section 23.
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 to
association. Nevertheless, the United States Supreme Court held
in NAACP v. Alabama that the freedom of
association is an essential part of the Freedom of
Speech because, in many cases, people can engage in effective
speech only when they join with others.
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
considered forms of "intimate association." The paradigmatic example
of "intimate association" is the family. Depending on the
jurisdiction it may also extend to abortion, birth control and private, adult,
non-commercial and consensual sexual relationships.
Expressive associations are groups
that engage in activities protected by the First Amendment – speech, assembly, press, petitioning government for a
redress of grievances, and the free exercise of religion.
In Roberts v. United States Jaycees,
the Supreme Court held that associations may not exclude people for reasons
unrelated to the group's expression. However, in the subsequent decisions
of Hurley v.
Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court
ruled that a group may exclude people from membership if their presence would
affect the group's ability to advocate a particular point of view. The
government cannot, through the use of anti-discrimination laws, force groups to
include a message that they do not wish to convey.
However, this concept does not now
apply in the University setting due to the Supreme Court's ruling in Christian Legal Society v. Martinez (2010),
which upheld Hastings College of Law policy that the school's conditions on
recognizing student groups were viewpoint neutral and reasonable. The policy
requires student organizations to allow "any student to participate,
become a member, or seek leadership positions, regardless of their status or
beliefs" and so, can be used to deny the group recognition as an official
student organization because it had required its members to attest in writing
that "I believe in: The Bible as the inspired word of God; The Deity of
our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our
sins; His bodily resurrection and His personal return; The presence and power
of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son,
is Lord of my life." The Court reasoned that because this constitutional
inquiry occurs in the education context the same considerations that have led
the Court to apply a less restrictive level of scrutiny to speech in limited
public forums applies. Thus, the college's all-comers policy is a reasonable,
viewpoint-neutral condition on access to the student organization forum.
However, the implicit First
Amendment right of association in the U.S.
Constitution has been limited by 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. 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.[5]
The holding of Runyon is
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.
Governments often require contracts of adhesion with private
entities for licensing purposes, such as with Financial Industry Regulatory
Authority for stock market trading
in the1938 Maloney Act amendments to
the Securities Exchange Act of 1934.
These contracts often bar association with banned members, as can be seen
in United States v. Merriam, 108 F.3d 1162.
