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# 4 ,,,1992 CONSTITUTION OF THE UNITED STATES]

[Page 1020-1187]

[[Page 1020]]

FIRST AMENDMENT

RELIGION AND EXPRESSION

FREEDOM OF EXPRESSION--SPEECH AND PRESS

[[Page 1046]]
The determination was made after due deliberation, and the seriousness
of the congressional purpose is attested by the volume of legislation
passed to effectuate the same ends.''\128\ Only if the balance struck by
the legislature is ``outside the pale of fair judgment''\129\ could the
Court hold that Congress was deprived by the Constitution of the power
it had exercised.\130
\124\Dennis v. United States, 341 U.S. 494, 517 (1951)
(concurring opinion).
\125\Id. at 524-25.
\126\Id. at 542.
\127\Id. at 525.
\128\Id. at 550-51.
\129\Id. at 540.
\130\Id. at 551.
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Thereafter, during the 1950's and the early 1960's, the Court
utilized the balancing test in a series of decisions in which the issues
were not, as they were not in Douds and Dennis, matters of expression or
advocacy as a threat but rather were governmental inquiries into
associations and beliefs of persons or governmental regulation of
associations of persons, based on the idea that beliefs and associations
provided adequate standards for predicting future or intended conduct
that was within the power of government to regulate or to prohibit.
Thus, in the leading case on balancing, Konigsberg v. State Bar of
California,\131\ the Court upheld the refusal of the State to certify an
applicant for admission to the bar. Required to satisfy the Committee of
Bar Examiners that he was of ``good moral character,'' Konigsberg
testified that he did not believe in the violent overthrow of the
government and that he had never knowingly been a member of any
organization which advocated such action, but he declined to answer any
question pertaining to membership in the Communist Party.

\131\366 U.S. 36 (1961).
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For the Court, Justice Harlan began by asserting that freedom of
speech and association were not absolutes but were subject to various
limitations. Among the limitations, ``general regulatory statutes, not
intended to control the content of speech but incidentally limiting its
unfettered exercise, have not been regarded as the type of law the First
or Fourteenth Amendment forbade Congress or the States to pass, when
they have been found justified by subordinating valid governmental
interests, a prerequisite to constitutionality which has necessarily
involved a weighing of the governmental interest involved.''\132\ The
governmental interest involved was the assurance that those admitted to
the practice of law were committed to lawful change in society and it
was proper for the State to believe that one possessed of ``a belief,
firm enough to be carried over into advocacy, in the use of illegal
means to change the form'' of government did not meet the standard of
fitness.\133\ On the other hand, the First Amendment interest was
limited be

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cause there was ``minimal effect upon free association occasioned by
compulsory disclosure'' under the circumstances. ``There is here no
likelihood that deterrence of association may result from foreseeable
private action . . . for bar committee interrogations such as this are
conducted in private. . . . Nor is there the possibility that the State
may be afforded the opportunity for imposing undetectable arbitrary
consequences upon protected association . . . for a bar applicant's
exclusion by reason of Communist Party membership is subject to judicial
review, including ultimate review by this Court, should it appear that
such exclusion has rested on substantive or procedural factors that do
not comport with the Federal Constitution.''\134
\132\Id. at 50-51.
\133\Id. at 51-52.
\134\Id. at 52-53. See also In re Anastaplo, 366 U.S. 82 (1961).
The status of these two cases is in doubt after Baird v. State Bar, 401
U.S. 1 (1971), and In re Stolar, 401 U.S. 23 (1971), in which neither
the plurality nor the concurring Justice making up the majority used a
balancing test.
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Balancing was used to sustain congressional and state inquiries
into the associations and activities of individuals in connection with
allegations of subversion\135\ and to sustain proceedings against the
Communist Party and its members.\136\ In certain other cases, involving
state attempts to compel the production of membership lists of the
National Association for the Advancement of Colored People and to
investigate that organization, use of the balancing test resulted in a
finding that speech and associational rights outweighed the governmental
interest claimed.\137\ The Court used a balancing test in the late
1960's to protect the speech rights of a public employee who had
criticized his employers.\138\ On the other hand, balancing was not used
when the Court struck down restrictions on receipt of materials mailed
from Communist countries,\139\ and it was similarly not used in cases
involving picketing, pamphleteering, and demonstrating in public
places.\140\ But the only case in which it was specifically rejected
involved a statutory regulation like those which had given rise to the
test in the first

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place. United States v. Robel\141\ held invalid under the First
Amendment a statute which made it unlawful for any member of an
organization which the Subversive Activities Control Board had ordered
to register to work in a defense establishment.\142\ Although Chief
Justice Warren for the Court asserted that the vice of the law was that
its proscription operated per se ``without any need to establish that an
individual's association poses the threat feared by the Government in
proscribing it,''\143\ the rationale of the decision was not clear and
present danger but the existence of less restrictive means by which the
governmental interest could be accomplished.\144\ In a concluding
footnote, the Court said: ``It has been suggested that this case should
be decided by `balancing' the governmental interests . . . against the
First Amendment rights asserted by the appellee. This we decline to do.
We recognize that both interests are substantial, but we deem it
inappropriate for this Court to label one as being more important or
more substantial than the other. Our inquiry is more circumscribed.
Faced with a clear conflict between a federal statute enacted in the
interests of national security and an individual's exercise of his First
Amendment rights, we have confined our analysis to whether Congress has
adopted a constitutional means in achieving its concededly legitimate
legislative goal. In making this determination we have found it
necessary to measure the validity of the means adopted by Congress
against both the goal it has sought to achieve and the specific
prohibitions of the First Amendment. But we have in no way `balanced'
those respective interests. We have ruled only that the Constitution
requires that the conflict between congressional power and individual
rights be accommodated by legislation drawn more narrowly to avoid the
conflict.''\145
\135\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v.
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399
(1961); Braden v. United States, 365 U.S. 431 (1961).
\136\Communist Party v. SACB, 367 U.S. 1 (1961); Scales v.
United States, 367 U.S. 203 (1961).
\137\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958);
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Gibson v. Florida
Legislative Investigating Committee, 372 U.S. 539 (1963).
\138\Pickering v. Board of Education, 391 U.S. 563 (1968).
\139\Lamont v. Postmaster General, 381 U.S. 301 (1965).
\140\E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2
cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v.
Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966).
But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing
reappears and in which other considerations overbalance the First
Amendment claims.
\141\389 U.S. 258 (1967).
\142\Subversive Activities Control Act of 1950, Sec. 5(a)(1)(D),
ch. 1024, 64 Stat. 992, 50 U.S.C. Sec. 784(a)(1)(D).
\143\United States v. Robel, 389 U.S. 258, 265 (1967).
\144\Id. at 265-68.
\145\Id. at 268 n.20.
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The ``Absolutist'' View of the First Amendment, With a Note on
``Preferred Position''.--During much of this period, the opposition to
the balancing test was led by Justices Black and Douglas, who espoused
what may be called an ``absolutist'' position, denying the government
any power to abridge speech. But the beginnings of such a philosophy may
be gleaned in much earlier cases in which a rule of decision based on a
preference for First Amendment liberties was prescribed. Thus, Chief
Justice Stone in his famous Carolene Products ``footnote 4'' suggested
that the ordinary presumption of constitutionality which prevailed when
economic

[[Page 1049]]
regulation was in issue might very well be reversed when legislation
which restricted ``those political processes which can ordinarily be
expected to bring about repeal of undesirable legislation'' is called
into question.\146\ Then in Murdock v. Pennsylvania,\147\ in striking
down a license tax on religious colporteurs, the Court remarked that
``[f]reedom of press, freedom of speech, freedom of religion are in a
preferred position.'' Two years later the Court indicated that its
decision with regard to the constitutionality of legislation regulating
individuals is ``delicate . . . [especially] where the usual presumption
supporting legislation is balanced by the preferred place given in our
scheme to the great, the indispensable democratic freedoms secured by
the First Amendment. . . . That priority gives these liberties a
sanctity and a sanction not permitting dubious intrusions.''\148\ The
``preferred-position'' language was sharply attacked by Justice
Frankfurter in Kovacs v. Cooper\149\ and it dropped from the opinions,
although its philosophy did not.

\146\United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938).
\147\319 U.S. 105, 115 (1943). See also West Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 639 (1943).
\148\Thomas v. Collins, 323 U.S. 516, 529-30 (1945).
\149\336 U.S. 77, 89 (1949) (collecting cases with critical
analysis).
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Justice Black expressed his position in many cases but his
Konigsberg dissent contains one of the lengthiest and clearest
expositions of it.\150\ That a particular governmental regulation
abridged speech or deterred it was to him ``sufficient to render the
action of the State unconstitutional'' because he did not subscribe ``to
the doctrine that permits constitutionally protected rights to be
`balanced' away whenever a majority of this Court thinks that a State
might have an interest sufficient to justify abridgment of those
freedoms . . . I believe that the First Amendment's unequivocal command
that there shall be no abridgment of the rights of free speech and
assembly shows that the men who drafted our Bill of Rights did all the
`balancing' that was to be done in this field.''\151\ As he elsewhere
wrote: ``First Amendment rights are beyond abridgment either by
legislation that directly restrains their exer

[[Page 1050]]
cise or by suppression or impairment through harassment, humiliation, or
exposure by government.''\152\ But the ``First and Fourteenth Amendments
. . . take away from government, state and federal, all power to
restrict freedom of speech, press and assembly where people have a right
to be for such purpose. This does not mean however, that these
amendments also grant a constitutional right to engage in the conduct of
picketing or patrolling whether on publicly owned streets or on
privately owned property.''\153\ Thus, in his last years on the Court,
the Justice, while maintaining an ``absolutist'' position, increasingly
drew a line between ``speech'' and ``conduct which involved
communication.''\154
\150\Konigsberg v. State Bar of California, 366 U.S. 36, 56
(1961) (dissenting opinion). See also Braden v. United States, 365 U.S.
431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399,
422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960)
(dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959)
(dissenting); American Communications Ass'n v. Douds, 339 U.S. 382, 445
(1950); Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting);
Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York
Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York
Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For
Justice Douglas' position, see New York Times Co. v. United States,
supra, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S.
476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450
(1969) (concurring).
\151\Konigsberg v. State Bar of California, 366 U.S. 36, 60-61
(1961).
\152\Bates v. City of Little Rock, 361 U.S. 516, 528 (1960)
(concurring).
\153\Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965)
(dissenting).
\154\These cases involving important First Amendment issues are
dealt with infra, pp. 1123-42. See Brown v. Louisiana, 383 U.S. 131
(1966); Adderley v. Florida, 385 U.S. 39 (1966).
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Of Other Tests and Standards: Vagueness, Overbreadth, Least
Restrictive Means, and Others.--In addition to the foregoing tests, the
Court has developed certain standards that are exclusively or primarily
applicable in First Amendment litigation. Some of these, such as the
doctrines prevalent in the libel and obscenity areas, are very
specialized,\155\ but others are not. Vagueness is a due process vice
which can be brought into play with regard to any criminal and many
civil statutes,\156\ but as applied in areas respecting expression it
also encompasses concern that protected conduct will be deterred out of
fear that the statute is capable of application to it. Vagueness has
been the basis for voiding numerous such laws, especially in the fields
of loyalty oaths,\157\ obscenity,\158\ and restrictions on public
demonstrations.\159\ It is usually combined with the overbreadth
doctrine, which focuses on the

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need for precision in drafting a statute that may affect First Amendment
rights;\160\ an overbroad statute that sweeps under its coverage both
protected and unprotected speech and conduct will normally be struck
down as facially invalid, although in a non-First Amendment situation
the Court would simply void its application to protected conduct.\161\
Similarly, and closely related at least to the overbreadth doctrine, the
Court has insisted that when the government seeks to carry out a
permissible goal and it has available a variety of effective means to
the given end, it must choose the measure which least interferes with
rights of expression.\162\ Also, the Court has insisted that regulatory
measures which bear on expression must relate to the achievement of the
purpose asserted as its justification.\163\ The prevalence of these
standards and tests in this area would appear to indicate that while
``preferred position'' may have disappeared from the Court's language it
has not disappeared from its philosophy.

\155\Infra, pp.1136-45, 1149-59.
\156\The vagueness doctrine generally requires that a statute be
precise enough to give fair warning to actors that contemplated conduct
is criminal, and to provide adequate standards to enforcement agencies,
factfinders, and reviewing courts. See, e.g., Connally v. General
Construction Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S.
451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of
Hoffman Estates v. Flipside, 455 U.S. 489 (1982).
\157\E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278
(1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of
Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).
\158\E.g., Winters v. New York, 333 U.S. 507 (1948); Burstyn v.
Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390
U.S. 676 (1968).
\159\E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory
v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati,
402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag
desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974)
(punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S.
610 (1976) (door-to-door canvassing). For an evident narrowing of
standing to assert vagueness, see Young v. American Mini Theatres, 427
U.S. 50, 60 (1976).
\160\NAACP v. Button, 371 U.S. 415, 432-33 (1963).
\161\E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v.
Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389
U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City
of New Orleans, 415 U.S. 130 (1974). However, the Court's
dissatisfaction with the reach of the doctrine, see e.g., Younger v.
Harris, 401 U.S. 37 (1971), resulted in a curbing of it in Broadrick v.
Oklahoma, 413 U.S. 601 (1973), a 5-to-4 decision, in which the Court
emphasized ``that facial overbreadth adjudication is an exception to our
traditional overbreadth adjudication,'' and held that where conduct and
not merely speech is concerned ``the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep,'' Id. at 615. The opinion of the
Court and Justice Brennan's dissent, id. at 621, contain extensive
discussion of the doctrine. Other restrictive decisions are Arnett v.
Kennedy, 416 U.S. 134, 158-64 (1974); Parker v. Levy, 417 U.S. 733, 757-
61 (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982).
Nonetheless, the doctrine continues to be used across a wide spectrum of
First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815-18 (1975);
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem
Inn, 422 U.S. 922, 932-34 (1975); Village of Schaumburg v. Citizens for
a Better Environment, 444 U.S. 620, 633-39 (1980); Secretary of State of
Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable
solicitation statute placing 25% cap on fundraising expenditures); City
of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it
unlawful to ``oppose, molest, abuse, or interrupt'' police officer in
performance of duty); Board of Airport Comm'rs v. Jews for Jesus, 482
U.S. 569 (1987) (resolution banning all ``First Amendment activities''
at airport).
\162\Shelton v. Tucker, 364 U.S. 479 (1960); United States v.
Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
425 U.S. 748 (1976); Central Hudson Gas & Electric Co. v. PSC, 447 U.S.
557, 564, 565, 569-71 (1980).
\163\Bates v. City of Little Rock, 361 U.S. 516, 525 (1960);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958); Louisiana
ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961). See also Central
Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980).
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Is There a Present Test?--Complexities inherent in the myriad
varieties of expression encompassed by the First Amendment guarantees of
speech, press, and assembly probably preclude any

[[Page 1052]]
single standard. For certain forms of expression for which protection is
claimed, the Court engages in ``definitional balancing'' to determine
that those forms are outside the range of protection.\164\ Balancing is
in evidence to enable the Court to determine whether certain covered
speech is entitled to protection in the particular context in which the
question arises.\165\ Utilization of vagueness, overbreadth and less
intrusive means may very well operate to reduce the occasions when
questions of protection must be answered squarely on the merits. What is
observable, however, is the re-emergence, at least in a tentative
fashion, of something like the clear and present danger standard in
advocacy cases, which is the context in which it was first developed.
Thus, in Brandenburg v. Ohio,\166\ a conviction under a criminal
syndicalism statute of advocating the necessity or propriety of criminal
or terroristic means to achieve political change was reversed. The
prevailing doctrine developed in the Communist Party cases was that
``mere'' advocacy was protected but that a call for concrete, forcible
action even far in the future was not protected speech and knowing
membership in an organization calling for such action was not protected
association, regardless of the probability of success.\167\ In
Brandenburg, however, the Court reformulated these and other rulings to
mean ``that the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action.''\168\ The Court has not revisited these is

[[Page 1053]]
sues since Brandenburg, so the long-term significance of the decision is
yet to be determined.

\164\Thus, obscenity, by definition, is outside the coverage of
the First Amendment, Roth v. United States, 354 U.S. 476 (1957); Paris
Adult Theatre v. Slaton, 413 U.S. 49 (1973), as are malicious
defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and
``fighting words,'' Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
The Court must, of course, decide in each instance whether the
questioned expression definitionally falls within one of these or
another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974);
Gooding v. Wilson, 405 U.S. 518 (1972).
\165\E.g., the multifaceted test for determining when commercial
speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S.
557, 566 (1980); the standard for determining when expressive conduct is
protected, United States v. O'Brien, 391 U.S. 367, 377 (1968); the
elements going into decision with respect to access at trials, Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 606-10 (1982); and the
test for reviewing press ``gag orders'' in criminal trials, Nebraska
Press Ass'n v. Stuart, 427 U.S. 539, 562-67 (1976), are but a few
examples.
\166\395 U.S. 444 (1969).
\167\Yates v. United States, 354 U.S. 298 (1957); Scales v.
United States 367 U.S. 203 (1961): Noto v. United States, 367 U.S. 290
(1961). And see Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United
States, 394 U.S. 705 (1969).
\168\395 U.S. at 447 (1969). Subsequent cases relying on
Brandenburg indicate the standard has considerable bite, but do not
elaborate sufficiently enough to begin filling in the outlines of the
test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308-
09 (1981).
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FIRST AMENDMENT

RELIGION AND EXPRESSION

FREEDOM OF EXPRESSION--SPEECH AND PRESS


Freedom of Belief

The First Amendment does not expressly speak in terms of liberty
to hold such beliefs as one chooses, but in both the religion and the
expression clauses, it is clear, liberty of belief is the foundation of
the liberty to practice what religion one chooses and to express oneself
as one chooses.\169\ ``If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their faith
therein.''\170\ Speaking in the context of religious freedom, the Court
at one point said that while the freedom to act on one's beliefs could
be limited, the freedom to believe what one will ``is absolute.''\171\
But matters are not so simple.

\169\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943); Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); United
States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488
(1961); American Communications Ass'n v. Douds, 339 U.S. 382, 408
(1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357
U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5-6 (1971),
and id. at 9-10 (Justice Stewart concurring).
\170\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943).
\171\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
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Flag Salute Cases.--That government generally may not compel a
person to affirm a belief is the principle of the second Flag Salute
Case.\172\ In Minersville School District v. Gobitis,\173\ the Court
upheld the power of the State to expel from its schools certain
children, Jehovah's Witnesses, who refused upon religious grounds to
join in a flag salute ceremony and recitation of the pledge of
allegiance. ``Conscientious scruples have not, in the course of the long
struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction of
religious beliefs.''\174\ But three years later, a six-to-three majority
of the Court reversed itself.\175\ Justice Jackson for

\172\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943).
\173\310 U.S. 586 (1940).
\174\Id. at 594. Justice Stone alone dissented, arguing that the
First Amendment religion and speech clauses forbade coercion of ``these
children to express a sentiment which, as they interpret it, they do not
entertain, and which violates their deepest religious convictions.'' Id.
at 601.
\175\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). Justices Roberts and Reed simply noted their continued adherence
to Gobitis. Id. at 642. Justice Frankfurter dissented at some length,
denying that the First Amendment authorized the Court ``to deny to the
State of West Virginia the attainment of that which we all recognize as
a legitimate legislative end, namely, the promotion of good citizenship,
by employment of the means here chosen.'' Id. at 646, 647.

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[[Page 1054]]


the Court chose to ignore the religious argument and to ground the
decision upon freedom of speech. The state policy, he said,
constituted ``a compulsion of students to declare a belief. . . . It
requires the individual to communicate by word and sign his
acceptance of the political ideas [the flag] bespeaks.''\176\ But
the power of a State to follow a policy that ``requires affirmation
of a belief and an attitude of mind'' is limited by the First
Amendment, which, under the standard then prevailing, required the
State to prove that the act of the students in remaining passive
during the ritual ``creates a clear and present danger that would
justify an effort even to muffle expression.''\177

\176\Id. at 631, 633.
\177\Id. at 633-34. Barnette was the focus of the Court's
decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's
requirement that motorists display auto license plates bearing the motto
``Live Free or Die.'' Acting on the complaint of a Jehovah's Witness,
the Court held that one may not be compelled to display on his private
property a message making an ideological statement. Compare PruneYard
Shopping Center v. Robins, 447 U.S. 74, 85-88 (1980), and id. at 96
(Justice Powell concurring).
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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.\178\ It is not at all clear, however, to what
degree the government is limited in probing the sincerity of the person
taking the oath.\179
\178\Cole v. Richardson, 405 U.S. 676 (1972); Connell v.
Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966);
Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-
judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp.
876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968);
Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge
court), aff'd., 397 U.S. 317 (1970); Law Students Civil Rights Research
Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So.
2d 822 (Fla. 1973), aff'd per curiam, 414 U.S. 1148 (1974).
\179\Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law
Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
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Imposition of Consequences for Holding Certain Beliefs.--Despite
the Cantwell dictum that freedom of belief is absolute,\180\ 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.\181\ It is not clear
what precise limitations the Court has placed on these practices.

\180\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
\181\The issue has also arisen in the context of criminal
sentencing. Evidence that racial hatred was a motivation for a crime may
be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983), 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, 112 S. Ct. 4197 (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).

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[[Page 1055]]

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
affiliations.''\182\ 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.\183\ 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,\184\ 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 which Congress
could prevent.\185\ Dissenting, Justice Frankfurter thought the
provision too vague,\186\ Justice Jackson thought that Congress could
impose no disqualification upon anyone for an opinion or belief which
had not manifested itself in any overt act,\187\ and Justice Black
thought that government had no power to penalize beliefs in any
way.\188\ Fi

[[Page 1056]]
nally, in Konigsberg v. State Bar of California,\189\ a majority of the
Court was found supporting dictum in Justice Harlan's opinion in which
he justified some inquiry into beliefs, saying that ``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 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.''

\182\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 infra, p.1085.
\183\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.
\184\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).
\185\339 U.S. at 408-09, 412.
\186\Id. at 415.
\187\Id. at 422.
\188\Id. at 445.
\189\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.
---------------------------------------------------------------------------

When the same issue returned to the Court years later, three
five-to-four decisions left the principles involved unclear.\190\ Four
Justices endorsed the view that beliefs could not be inquired into as a
basis for determining qualifications for admission to the bar;\191\ 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.\192\ 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.\193\ Changes in
Court personnel following this decision would seem to leave the
questions presented open to further litigation.

\190\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).
\191\401 U.S. at 5-8; id. at 28-29 (plurality opinions of
Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar,
respectively); id. at 174-76, 178-80 (Justices Black and Douglas
dissenting in Wadmond), 186-90 (Justices Marshall and Brennan dissenting
in Wadmond).
\192\401 U.S. at 17-19, 21-22 (Justices Blackmun, Harlan, and
White, and Chief Justice Burger dissenting in Baird).
\193\401 U.S. at 9-10; id. 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.
Id. at 161-66.
---------------------------------------------------------------------------
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

[[Page 1057]]
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.''\194\ It would appear from the
Court's opinions that the right of association is derivative from the
First Amendment guarantees of speech, assembly, and petition,\195\
although it has at times seemingly been referred to as a separate,
independent freedom protected by the First Amendment.\196\ 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.\197
\194\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61
(1958).
\195\Id.; 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).
\196\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).
\197\Infra, pp.1067-78.
---------------------------------------------------------------------------

Freedom of association as a concept thus grew out of a series of
cases in the 1950's and 1960's 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.''\198\
``[T]hese indispensable liberties, whether of speech, press, or
association,''\199\ 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.

\198\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460
(1958).
\199\Id. at 461.
---------------------------------------------------------------------------

Applying the concept in subsequent cases, the Court again held
in Bates v. City of Little Rock,\200\ 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,\201\ that while a State had a broad inter

[[Page 1058]]
est 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;\202\ and overturned a state court order barring the NAACP from
doing any business within the State because of alleged
improprieties.\203\ 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.\204
\200\361 U.S. 516 (1960).
\201\364 U.S. 479 (1960).
\202\Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961).
\203\NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964).
\204\Id. at 308, 309.
---------------------------------------------------------------------------

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.\205\ ``[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. . . .

\205\NAACP v. Button, 371 U.S. 415 (1963).
---------------------------------------------------------------------------

``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.''\206\ This decision was

[[Page 1059]]
followed in three subsequent 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 attorneys;\207\ in the
second the union retained attorneys on a salary basis to represent
members;\208\ in the third, the union maintained a legal counsel
department which recommended certain attorneys who would charge a
limited portion of the recovery and which defrayed the cost of getting
clients together with attorneys and of investigation of accidents.\209\
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. . . .''\210
\206\Id. 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).
\207\Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1
(1964).
\208\United Mine Workers v. Illinois State Bar Ass'n, 389 U.S.
217 (1967).
\209\United Transportation Union v. State Bar of Michigan, 401
U.S. 576 (1971).
\210\Id. 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 veteran's death or
disability claims before VA).
---------------------------------------------------------------------------

Thus, a right to associate together to further political and
social views is protected against unreasonable burdening,\211\ but the
evolution of this right in recent years has passed far beyond the
relatively narrow contexts in which it was given birth.

\211\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).
---------------------------------------------------------------------------

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 age of 14 and 18, the Court declared that there is no
``generalized right of `social association' that includes chance
encounters in dance halls.''\212
\212\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.
---------------------------------------------------------------------------

In a series of three decisions, the Court explored the extent to
which associational rights may be burdened by nondiscrimination

[[Page 1060]]
requirements. First, Roberts v. United States Jaycees\213\ 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,\214\ 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 Club Ass'n v. New York
City,\215\ 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.''\216\ 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.''\217\ 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.\218
\213\468 U.S. 609 (1984).
\214\481 U.S. 537 (1987).
\215\487 U.S. 1 (1988).
\216\468 U.S. at 621.
\217\481 U.S. at 546.
\218\487 U.S. at 12.
---------------------------------------------------------------------------

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

[[Page 1061]]
voting members will impede the organization's ability to engage in these
protected activities or to disseminate its preferred views.''\219\
Moreover, the State had a ``compelling interest to prevent . . . acts of
invidious discrimination in the distribution of publicly available
goods, services, and other advantages.''\220
\219\468 U.S. at 626-27.
\220\468 U.S. at 628.
---------------------------------------------------------------------------

Because of the near-public nature of the Jaycees and Rotary
Clubs--the Court in Roberts likening the situation to a large business
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.\221\ 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.''\222
\221\The Court in Rotary rejected an assertion that Roberts had
recognized that Kiwanis Clubs are constitutionally distinguishable, and
suggested that a case-by-case approach is necessary to determine whether
``the `zone of privacy' extends to a particular club or entity.'' 481
U.S. at 547 n.6.
\222\487 U.S. at 15.
---------------------------------------------------------------------------

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 an
integral part of this basic constitutional freedom.''\223\ Usually in
combination with an equal protection analysis, the Court since Williams
v. Rhodes\224\ has passed on numerous state restrictions that have an
impact upon the ability of individuals or groups to join one or the
other of the major parties or to form and join an independent political
party to further political, social and economic goals.\225\ Of course,
the right is not absolute. The Court has recognized that there must be
substantial state regulation of the election process which necessarily
will work a diminu

[[Page 1062]]
tion of the individual's right to vote and to join with others for
political purposes. The validity of governmental regulation must be
determined by assessing the degree of infringement of the right of
association against the legitimacy, strength, and necessity of the
governmental interests and the means of implementing those
interests.\226\ Many restrictions upon political association have
survived this sometimes exacting standard of review, in large measure
upon the basis of some of the governmental interests found
compelling.\227
\223\Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).
\224\393 U.S. 23 (1968).
\225\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).
\226\Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); Bullock v.
Carter, 405 U.S. 134, 142-143 (1972); Storer v. Brown, 415 U.S. 724, 730
(1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 183 (1979).
\227\Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the
Court found ``compelling'' the state interest in achieving stability
through promotion of the two-party system, and upheld a bar on any
independent candidate who had been affiliated with any other party
within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31-32 (1968)
(casting doubt on state interest in promoting Republican and Democratic
voters). The state interest in protecting the integrity of political
parties was held to justify requiring enrollment of a person in the
party up to eleven months before a primary election, Rosario v.
Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to
forgo one election before changing parties. Kusper v. Pontikes, 414 U.S.
51 (1973). See also Civil Service Comm'n v. National Ass'n of Letter
Carriers, 413 U.S. 548 (1973) (efficient operation of government
justifies limits on employee political activity); Rodriguez v. Popular
Democratic Party, 457 U.S. 1 (1982) (permitting political party to
designate replacement in office vacated by elected incumbent of that
party serves valid governmental interests). Storer v. Brown was
distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding
invalid a requirement that independent candidates for President and
Vice-President file nominating petitions by March 20 in order to qualify
for the November ballot; state interests in assuring voter education,
treating all candidates equally (candidates participating in a party
primary also had to declare candidacy in March), and preserving
political stability, were deemed insufficient to justify the substantial
impediment to independent candidates and their supporters. See also
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state
interests are insubstantial in imposing ``closed primary'' under which a
political party is prohibited from allowing independents to vote in its
primaries).
---------------------------------------------------------------------------

A significant extension of First Amendment association rights in
the political context occurred when the Court curtailed the already
limited political patronage system. At first holding that a nonpolicy-
making, nonconfidential government employee cannot be discharged from a
job that he is satisfactorily performing upon the sole ground of his
political beliefs or affiliations,\228\ the Court subsequently held that
``the question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective
performance of the public office involved.''\229
[[Page 1063]]
The concept of policymaking, confidential positions was abandoned, the
Court noting that some such positions would nonetheless be protected
whereas some people filling positions not reached by the description
would not be.\230\ The opinion of the Court makes difficult an
evaluation of the ramifications of the decision, but it seems clear that
a majority of the Justices adhere to a doctrine of broad associational
political freedom that will have substantial implications for
governmental employment. Refusing to confine Elrod and Branti to their
facts, the court in Rutan v. Republican Party of Illinois\231\ held that
restrictions on patronage apply not only to dismissal or its substantial
equivalent, but also to promotion, transfer, recall after layoffs, and
hiring of low-level public employees.

\228\Elrod v. Burns, 427 U.S. 347 (1976). The limited
concurrence of Justices Stewart and Blackmun provided the qualification
for an otherwise expansive plurality opinion. Id. at 374.
\229\Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same
page, the Court refers to a position in which ``party membership was
essential to a discharge of the employee's governmental
responsibilities.'' (emphasis supplied). A great gulf separates
``appropriate'' from ``essential,'' so that much depends on whether the
Court was using the two words interchangeably or whether the stronger
word was meant to characterize the position noted and not to
particularize the standard.
\230\Justice Powell's dissents in both cases contain lengthy
treatments of and defenses of the patronage system as a glue
strengthening necessary political parties. Id. at 520.
\231\497 U.S. 62 (1990). Rutan was a 5-4 decision, with Justice
Brennan writing the Court's opinion. The four dissenters indicated, in
an opinion by Justice Scalia, that they would not only rule differently
in Rutan, but that they would also overrule Elrod and Branti.
---------------------------------------------------------------------------

The protected right of association extends as well to coverage
of party principles, enabling a political party to assert against some
state regulation an overriding interest sufficient to overcome the
legitimate interests of the governing body. Thus, a Wisconsin law that
mandated an open primary election, with party delegates bound to support
at the national convention the wishes of the voters expressed in that
primary election, while legitimate and valid in and of itself, had to
yield to a national party rule providing for the acceptance of delegates
chosen only in an election limited to those voters who affiliated with
the party.\232
\232\Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S.
107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party
rules, not state law, governed which delegation from State would be
seated at national convention; national party had protected
associational right to sit delegates it chose).
---------------------------------------------------------------------------

Provisions of the Federal Election Campaign Act requiring the
reporting and disclosure of contributions and expenditures to and by
political organizations, including the maintenance by such organizations
of records of everyone contributing more than $10 and the reporting by
individuals and groups that are not candidates or political committees
who contribute or expend more than $100 a year for the purpose of
advocating the election or defeat of an identified candidate, were
sustained.\233\ ``[C]ompelled disclosure, in itself, can seriously
infringe on privacy of association and belief guaranteed by the First
Amendment. . . . We long have recognized