The Right to Freedom of Expressive Association and the Press

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INTRODUCTION 
I. THE LEGAL FORMULATION OF THE RIGHT TO EXPRESSIVE ASSOCIATION 
   A.     Expression Group 
     1.   Unified message 
     2.   Commercial vs. noncommercial 
   B.     Deterrent Effect 
II. THE PRESS AND CONTENT-NEUTRAL GOVERNMENTAL ACTION 
   A.     Cases in Which a Balancing Test Was Inappropriate 
   B.     Cases in Which a Balancing Test Would Have Been 
          Appropriate 
     1.   Statutory/regulatory prohibitions on group expressive 
          activity 
     2.   Discretionary governmental actions triggered by group 
          expressive activity 
III. THE PRESS AND THE PARADIGM CASES 
   A.     The Discrimination Context 
   B.     The Disclosure Context 
CONCLUSION 

INTRODUCTION

Although courts often express reservations about defining "the press," (1) they are rarely reserved in their praise of the press as an institution. As is often said, the press serves the important functions of exposing political corruption and unresponsiveness to the electorate (2) and informing the public about the social and economic condition of the polity to promote more educated choices in the voting booth. (3) Its effective performance of these functions makes the press an institution well-suited to advancing the goals that the First Amendment, in the view of the judiciary, was designed to achieve: among others, the promotion of open debate on policy proposals to arrive at the best possible solutions to social problems, (4) the prevention of governmental control of the public through misinformation, (5) and the deterrence of corruption and malfeasance by governmental actors. (6) It is thus incongruous that courts have not historically afforded the press the protection of a key First Amendment doctrine: the right to freedom of expressive association.

The right to freedom of expressive association prohibits governmental actions (7) that have the effect of deterring persons from congregating in groups for the purpose of performing expressive activity. (8) This protection is essential to ensuring that a plurality of views reaches a wide audience, since individuals engaged in solitary expressive activity would have great difficulty making their opinions heard. By "expressive activity," I mean any activity afforded some degree of protection by the Speech Clause of the First Amendment, (9) which restrains governmental actors from making any law or taking any action "abridging the freedom of speech." (10) If an activity is protected by the Speech Clause, the First Amendment protects the people's right not only to engage in the activity but also to organize for the purpose of engaging in it. For example, just as the government cannot revoke a person's passport for advocating communism because such advocacy constitutes a protected expressive activity, so too the government cannot revoke a person's passport by virtue of his membership in the Communist Party. Such an action would violate his right to expressive association by penalizing him for associating with his fellow party members for the purpose of disseminating communist doctrines. (11) I will call a group of persons congregating for the purpose of engaging in expressive activity an "expressive group." (12) Prime examples of expressive groups in the Supreme Court's jurisprudence include political parties, (13) legal aid groups, (14) and nonprofit organizations dedicated to the improvement of their members' skills and character. (15)

Governmental actors rarely prohibit the activities of specific expressive groups outright. (16) More often, governmental actors harm expressive groups by passing content-neutral statutes--i.e., statutes not passed with the purpose of suppressing discussion of a particular subject matter or viewpoint (17)--that have the effect of imposing a cost on group expressive activities and hence deterring people from engaging in them. Governmental actors typically impose these burdens in one of three ways: (18) mandating that an expressive group admit a person it does not desire into its membership; (19) requiring that an expressive group disclose the identities of its members and affiliates, thus subjecting those persons to potential harassment and embarrassment; (20) and explicitly prohibiting or penalizing a given type of group expressive activity. …