Academic journal article Northwestern University Law Review

What Is Really Wrong with Compelled Association?

Academic journal article Northwestern University Law Review

What Is Really Wrong with Compelled Association?

Article excerpt


Roberts v. United States Jaycees1 held that it was constitutionally permissible for Minnesota to require the Jaycees, as a public accommodation, to desegregate and to admit women. Sixteen years later, Boy Scouts of America v. Dale2 held that it was constitutionally impermissible for New Jersey to require the Boy Scouts, as a public accommodation, to remain partly desegregated and to retain an openly gay Scoutmaster. It is no surprise that Dale caused gnashing of teeth by those who applauded Roberts v. Jaycees: the Court's commitment to integration seemed all too limited. Women counted; gays and lesbians did not. This analysis may be a partly accurate diagnosis of Dale's resolution, but it does not fully capture what is troubling about Dale. From a First Amendment perspective, both Jaycees and Dale should have occasioned even greater dental damage.

Those who support Roberts v. Jaycees, especially liberals, should have been disturbed by Dale, not entirely because of its outcome, but because the reasoning of Dale and the debate between the justices was foreshadowed by Justice Brennan's majority opinion in Jaycees. The opinions in Dale, and in particular the dissenting opinions of the liberal justices, follow the lead of Justice Brennan. In so doing, they reflect and forward a message-centered view of freedom of association that, while familiar, is importantly and unpalatably incomplete.

In this Essay, I will argue that Jaycees was correctly decided but that Justice Brennan's majority opinion reflects and has reinforced a messagecentered approach to freedom of association that denigrates its value and implicitly distorts and underplays its intimate connection to freedom of speech. A parallel mistake occurs in a common articulation of the objection to certain forms of compelled speech. Drawing upon a core, but underemphasized, aspect of liberalism, I will re-fashion the case against compelled speech in a way that concomitantly provides a stronger foundation for freedom of association. Specifically, the fundamental wrong of compelled speech in cases such as West Virginia State Board of Education v. Barnette? which found the compulsory recitation of the Pledge of Allegiance unconstitutional, does not depend on any external effect, in particular on outsiders possibly misunderstanding a person's compelled speech as his own. It has more to do with the illicit influence compelled speech may have on the character and autonomous thinking process of the compelled speaker, and with illicit and disrespectful governmental efforts, however fruitless, to exert such influence.4

Similarly, the wrong of compelled association is not fully captured by analyses that concentrate upon the risk that outsiders will misunderstand the association's message or that the association's message will somehow become garbled and less intelligible either to outsiders or insiders. Associations have an intimate connection to freedom of speech values not solely because they can be mechanisms for message dissemination or sites for the pursuit of shared aims. Associations have an intimate connection to freedom of speech values in large part because they are special sites for the generation and germination of thoughts and ideas. As with compelled speech, our concern should be turned inward onto the internal thinking process of group members, rather than predominantly on whether there is confusion in the transmission of a group's message.

I aim to provide a philosophical argument to provide a stronger free speech foundation for a robust right to freedom of social and expressive association (including the freedom to exclude unwanted members) than that provided by standard message-based accounts such as Justice Brennan's. The philosophical account I articulate also motivates the more functional approach suggested by Justice O'Connor in her concurrence in Jaycees. But my advocacy of strong freedom of association rights does not settle the question of whether Dale in particular was correctly decided. …

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