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g. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983); Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced because the defendant intentionally selected his victim on account of the victim’s race), but evidence of the defendant’s membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant’s crime and the group’s objectives. Dawson v. Delaware, 503 U.S. 159 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other’s behalf). However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution. 502 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath. 503 Imposition of Consequences for Holding Certain Beliefs.— Despite the Cantwell dictum that freedom of belief is absolute, 504 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions. 505 It is not clear what precise limitations the Court has placed on these practices. In its disposition of one of the first cases concerning the federal loyalty-security program, the Court of Appeals for the District of Columbia asserted broadly that ‘‘so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affili- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00100 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1113 506 Bailey v. Richardson, 182 F.2d 46, 59 (D.C. Cir. 1950). The premise of the decision was that government employment is a privilege rather than a right and that access thereto may be conditioned as the Government pleases. But this basis, as the Court has said, ‘‘has been thoroughly undermined in the ensuing years.’’ Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-privilege distinction, see discussion under ‘‘Government as Employer: Free Speech Generally,’’ infra. 507 Bailey v. Richardson, 341 U.S. 918 (1951). See also Washington v. McGrath, 341 U.S. 923 (1951), aff’g by an equally divided Court, 182 F. 2d 375 (D.C. Cir. 1950). While no opinions were written in these cases, several Justices expressed themselves on the issues in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), decided the same day. 508 339 U.S. 382 (1950). In a later case raising the same point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 (1950). 509 339 U.S. at 408-09, 412. 510 339 U.S. at 415. 511 339 U.S. at 422. 512 339 U.S. at 445. 513 336 U.S. 36, 51–52 (1961). See also In re Anastaplo, 336 U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the ground that the refusal to admit the two to the state bars was impermissibly based upon their beliefs. Id. at 56, 97. ations.’’ 506 On appeal, this decision was affirmed by an equally divided Court, it being impossible to determine whether this issue was one treated by the Justices. 507 Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or ‘‘beliefs plus.’’ But the same issue was also before the Court in related fields. In American Communications Ass’n v. Douds, 508 the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct that Congress could prevent. 509 Dissenting, Justice Frankfurter thought the provision too vague, 510 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act, 511 and Justice Black thought that government had no power to penalize beliefs in any way. 512 Finally, in Konigsberg v. State Bar of California, 513 a majority of the Court supported dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that ‘‘[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00101 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1114 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 514 Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971). 515 401 U.S. at 5-8; 401 U.S. at 28-29 (plurality opinions of Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, respectively); 401 U.S. at 174–76, 178–80 (Justices Black and Douglas dissenting in Wadmond), 186–90 (Justices Marshall and Brennan dissenting in Wadmond). 516 401 U.S. at 17–19, 21–22 (Justices Blackmun, Harlan, and White, and Chief Justice Burger dissenting in Baird). 517 401 U.S. at 9-10; 401 U.S. at 31 (Justice Stewart concurring in Baird and Stolar, respectively). How far Justice Stewart would permit government to go is not made clear by his majority opinion in Wadmond. 401 U.S. at 161-66. 518 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958). State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country’s legal and political institutions.’’ When the same issue returned to the Court years later, three five-to-four decisions left the principles involved unclear. 514 Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar; 515 four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the States were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs. 516 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith. 517 Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation. Right of Association ‘‘It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.’’ 518 It would appear from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00102 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1115 519 357 U.S. at 460; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960); United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971); Healy v. James, 408 U.S. 169, 181 (1972). 520 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958); NAACP v. Button, 371 U.S. 415, 429–30 (1963); Cousins v. Wigoda, 419 U.S. 477, 487 (1975); In re Primus, 436 U.S. 412, 426 (1978); Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981). 521 See ‘‘Maintenance of National Security and the First Amendment,’’ infra. 522 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). 523 357 U.S. at 461. 524 361 U.S. 516 (1960). 525 364 U.S. 479 (1960). 526 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961). and petition, 519 although it has at times seemingly been referred to as a separate, independent freedom protected by the First Amendment. 520 The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association. 521 Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain States were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the State. ‘‘Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.’’ 522 ‘‘[T]hese indispensable liberties, whether of speech, press, or association,’’ 523 may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the State had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce. Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock, 524 that the disclosure of membership lists, because of the harm to be caused to ‘‘the right of association,’’ could only be compelled upon a showing of a subordinating interest; ruled in Shelton v. Tucker, 525 that while a State had a broad interest to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the NAACP; 526 and overturned a state court order barring the NAACP from doing any business within the State because of alleged impro- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00103 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1116 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 527 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964). 528 377 U.S. at 308, 309. 529 NAACP v. Button, 371 U.S. 415 (1963). 530 371 U.S. at 429-30. Button was applied in In re Primus, 436 U.S. 412 (1978), in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to utilize the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. ‘‘[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.’’ Id. at 431. ‘‘[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.’’ Id. at 426. However, ordinary law practice for commercial ends is not given special protection. ‘‘A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.’’ Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978). See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977). prieties. 527 Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, while other actions might not have been, the State could not so infringe on the ‘‘right of association’’ by ousting the organization altogether. 528 A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment. 529 ‘‘[A]bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. . . . In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. . . .’’ ‘‘We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.’’ 530 This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular at- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00104 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1117 531 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964). 532 United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967). 533 United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971). 534 401 U.S. at 578-79. These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veterans’ death or disability claims before VA). 535 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175–76 (1976); Norwood v. Harrison, 413 U.S. 455, 469–70 (1973); Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93–94 (1945). Roberts v. United States Jaycees, 468 U.S. 609 (1984). 536 City of Dallas v. Stanglin, 490 U.S. 19 (1989). The narrow factual setting— a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that ‘‘coming together to engage in recreational dancing . . . is not protected by the First Amendment.’’ Id. at 25. 537 468 U.S. 609 (1984). 538 481 U.S. 537 (1987). torneys; 531 in the second the union retained attorneys on a salaried basis to represent members; 532 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery. 533 Wrote Justice Black: ‘‘[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .’’ 534 Thus, a right to associate together to further political and social views is protected against unreasonable burdening, 535 but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was given birth. Social contacts that fall short of organization or association to ‘‘engage in speech’’ may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no ‘‘generalized right of ‘social association’ that includes chance encounters in dance halls.’’ 536 In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees 537 upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 538 the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00105 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1118 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 539 487 U.S. 1 (1988). 540 468 U.S. at 621. 541 481 U.S. at 546. 542 487 U.S. at 12. 543 468 U.S. at 626-27. 544 468 U.S. at 628. Club Ass’n v. New York City, 539 the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places ‘‘of public accommodation, resort, or amusement,’’ and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the State’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. On the one hand, the Court found, ‘‘the local chapters of the Jaycees are large and basically unselective groups,’’ age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, ‘‘lack the distinctive characteristics [e.g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.’’ 540 Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent ‘‘the kind of intimate or private relation that warrants constitutional protection.’’ 541 And in the New York City case, the fact that the ordinance certainly could be constitutionally applied at least to some of the large clubs, under [the] decisions in Rotary and Roberts, the applicability criteria ‘‘pinpointing organizations which are ‘commercial’ in nature,’’ helped to defeat the facial challenge. 542 Some amount of First Amendment protection is still due such organizations; the Jaycees and its members had taken public positions on a number of issues, and had engaged in ‘‘a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional protection.’’ However, the Roberts Court could find ‘‘no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.’’ 543 Moreover, the State had a ‘‘compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages.’’ 544 Because of the near-public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large busi- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00106 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1119 545 The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case-bycase approach is necessary to determine whether ‘‘the ‘zone of privacy’ extends to a particular club or entity.’’ 481 U.S. at 547 n.6. 546 487 U.S. at 15. 547 515 U.S. 557 (1995). 548 515 U.S. at 580. 549 515 U.S. at 580-81. 550 530 U.S. 640 (2000). 551 530 U.S. at 644. 552 530 U.S. at 648. ness attempting to discriminate in hiring or in selection of customers— the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs. 545 In New York City, the Court noted that ‘‘opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case-by-case analysis of specific facts.’’ 546 When application of a public accommodations law was viewed as impinging on an organization’s ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group. 547 To do so would require parade organizers to promote a message they did not wish to promote. The Roberts and New York City cases were distinguished as not involving ‘‘a trespass on the organization’s message itself.’’ 548 Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group ‘‘could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.’’ 549 In Boy Scouts of America v. Dale, 550 the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization’s ‘‘First Amendment right of expressive association.’’ 551 Citing Hurley, the Court held that ‘‘[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.’’ 552 The Boy Scouts, the Court found, VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00107 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1120 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 553 530 U.S. at 650. 554 530 U.S. at 651. 555 530 U.S. at 653. 556 530 U.S. at 653. One commentator argues that this decision subverts all civil rights laws by implying that any entity can claim ‘‘that the very act of discrimination shows an expressive purpose.’’ Andrew Koppelman, Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination, 23 CARDOZO L. REV. 1819, 1822 (2002). 557 Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973). 558 393 U.S. 23 (1968). 559 E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enrollment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary if he voted in another party’s primary within preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1982) (limit on contributions to associations formed to support or oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) (resign-to-run law). engages in expressive activity in seeking to transmit a system of values, which include being ‘‘morally straight’’ and ‘‘clean.’’ 553 The Court ‘‘accept[ed] the Boy Scouts’ assertion’’ that the organization teaches that homosexual conduct is not morally straight. 554 The Court also gave ‘‘deference to [the] association’s view of what would impair its expression.’’ 555 Allowing a gay rights activist to serve in the Scouts would ‘‘force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.’’ 556 Political Association.—The major expansion of the right of association has occurred in the area of political rights. ‘‘There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one’s choice is

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