Freedom of association

Freedom of association encompasses both an individual's right to join or leave groups voluntarily, and the right of the group to take collective action to pursue the interests of its members. Freedom of Association, The Essentials of Human Rights describes the right as coming together with other individuals to collectively express, promote, pursue and/or 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 the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.

Freedom of association is manifested through the right to join a trade union, to engage in free speech or to participate in debating societies, political parties, or any other club or association, including religious denominations and organizations, fraternities, and sport clubs. It is closely linked with freedom of assembly, particularly under the U.S. Bill of Rights. Freedom of assembly is typically associated with political contexts, however, and depending on the source, (e.g. the U.S. Constitution, human rights instruments, etc.) the right to freedom of association may include the right to freedom of assembly.

The courts and delegated officers of local jurisdictions may, however, impose restrictions on any of the rights of a convicted criminal as a condition of a legal stipulation. Rights to freedom of association and freedom of assembly are waived under certain circumstances, such as a guilty plea or conviction, restraining orders and probationer's search and seizure procedures.

History

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 the Combination 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 II, 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 of 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.

• JS Mill, On Liberty (1859) ‘freedom to unite for any purpose not involving harm to others’
• Otto von Gierke, Das deutsche Genossenschaftsrechts

Law

European Convention

Italian Constitution

In Italy the freedom of association is established in Article 18 of the Constitution, which states:^[1]

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.

South African Bill of Rights

The South African Constitution's Bill of Rights establishes 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", thus establishing the right to freedom 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.^[2]

United States Constitution

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 freedom of association is an essential part of freedom of speech because, in many cases, people can engage in effective speech only when they join with others.^[3]

Issues

Intimate association

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 association

In the United States, 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 U.S. 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.^[4]

Limitation

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 the 1938 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.

Organized labor

The organization of labor was commonly resisted during the 19th century, with even relatively liberal countries such as the United Kingdom banning it for various periods (in the UK's case, between 1820 and 1824).^[6]

In the international labour movement, the freedom of association is a right identified under international labour standards as the right of workers to organize and collectively bargain. Freedom of association, in this sense, is recognized as a fundamental human right by a number of documents including the Universal Declaration of Human Rights and International Labour Organization Convention C87 and Convention C98 – two of the eight fundamental, core international labour standards. 'Freedom of association' can also refer to legal bans on private contracts negotiated between a private employer and their employees requiring workers at a particular workplace to join a union as a term and condition of employment. Supporters of this sort of private freedom of association claim that the right to join a union incorporates a right not to join a union. In the United States, the term 'right to work' is more common for this type of law.

"The Supreme Court today (1-21-1997) sharply limited the ability of labor union organizers to go onto an employer's property to distribute literature or urge workers to join the union. In a 6-to-3 opinion written by Justice Clarence Thomas, the Court said that the National Labor Relations Board had failed to give adequate protection to employers' property rights when it adopted a rule four years ago that gave union organizers greater access to areas like the parking lots of shopping centers or factories." -New York Times^[7]

Theory

Democracy and civil society

Jeremy McBride argues that respect for the freedom of association by all public authorities and the exercising of this freedom by all sections of society are essential both to establish a "genuine democracy" and to ensure that, once achieved, it remains "healthy and flourishing". In this regard he sees the formation of political parties as a significant manifestation of the freedom of association.

The freedom of association is however not only exercised in the political sense, but also for a vast array of interests – such as culture, recreation, sport and social and humanitarian assistance. Jeremy McBride argues that the formation of non-governmental organizations (NGOs), which he equates with civil society, is the "fruit of associational activity".^[8]

Libertarian

Freedom of association is a term popular in libertarian literature. It is used to describe the concept of absolute freedom to live in a community or be part of an organization whose values or culture are closely related to one's preferences; or, on a more basic level, to associate with any individual or group of one's choosing.

Under laws in such a system, business owners could refuse service to anyone for whatever reason. Opponents argue that such practices are regressive and would lead to greater prejudice within society. Right-libertarians sympathetic to freedom of association, such as Richard Allen Epstein, respond that in a case of refusing service (which thus is a case of the freedom of contract) unjustified discrimination incurs a cost and therefore a competitive disadvantage. Left-libertarians argue that such refusal would place those businesses at an economic disadvantage to those that provide services to all, making them less profitable and eventually leading them to close down.

Libertarians also argue that freedom of association, in a political context, is merely the extension of the right to determine with whom to associate in one's personal life. For example, somebody who valued good manners or etiquette may not relish associating with someone who was not decent or was uncouth. Or, those opposed to homosexuality may not enjoy associating with gay people. In both instances, a person is voluntarily deciding with whom to associate, based on volition. Libertarians believe that freedom of association, in the political sphere, is not such a fanciful or unrealistic notion, since individual human beings already choose with whom they would like to associate based on a variety of reasons.

Libertarians also hold a strong opinion on labour unions, and some support the workers right to choose in an election whether to join a labour union or not. Right to work legislation has been a hot topic of debate within the party, with a majority of Libertarians opposing the legislation . Among libertarians there is no fixed view of unions beyond the principle of freedom of association. Gary Johnson, who won the Libertarian presidential nomination in 2012, presents this principle one way when he is quoted as saying in a 2014 Reddit interview "No worker is forced to take a job in a union shop. If the workers who came before them made the decision to organize into a labour union, they did it for a reason. It might be unfair working conditions, unfair wages, favoritism, or general inequality in the workplace." Johnson went on to say "Libertarians love history, but we don't like to see it repeat itself, and the previous decision to organize must be respected by any new hire wishing to seek employment within that shop, or utilize his or her right to seek employment in a non-union shop. Otherwise, the conditions which have been corrected by the presence of a Union will deteriorate." Conversely libertarians also believe that while freedom of association includes the right for workers to organise as unions and to withdraw their labour it also recognises the right of an employer to replace that labour.^[9] Libertarians also believe that where unions undermine the free market or employ coercive or violent tactics such behaviours would be in breach of libertarian principles. Some critics allege that such breaches have frequently been the case with union activity.^[10]

See also

• Civil liberties
• Free association
• Free State Project
• Libertarian socialism
• Right to work
• Self-determination
• United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association
• Voluntaryism

Notes