What's Really Wrong with Compelled Association?
What's Really Wrong With Compelled Association?
The article presents an original account of the value of freedom of association, one more intimately tied to freedom of speech values than the models of association implicit in much commentary and in such U.S. Supreme Court cases as Boy Scouts v. Dale and Roberts v. U.S. Jaycees. Standard models view the relationship between associations and free speech as instrumental. On these accounts, voluntary associations serve as sites for individuals with a defined point of view to congregate together and make their communication louder and more effective. While voluntary associations may sometimes serve this purpose, this model is overly narrow in two respects: it assumes individuals come to associations with previously formed messages and it assumes that associations seek an audience outside themselves to whom these shared messages are directed. The paper argues that in associations, individuals influence each other's thoughts and ideas. Thus, the focus of voluntary associations may well be internal and its message, if any, not defined prior to members’ interactions. Thinking of associations as a site for idea generation and mutual influence suggests a much tighter, less instrumental connection between associational freedom and freedom of speech; what and how individuals think is often a product of their relations, not prior to them. On this account, voluntary associations are a part of the network of social cooperation and connection that play an integral role in supporting and producing meaningful individual autonomy in liberal societies. Hence, freedom of association is at the core of freedom of speech and not merely a peripheral, derivative right.
This theoretical argument is pursued through an analysis of Boy Scouts v. Dale. I argue that the issue should not have been whether the gay Scoutmaster's inclusion would alter the association's message. The freedom of speech interest does not depend upon whether the association ever forms a unitary message that it broadcasts outward or inward. The last section of the article argues, however, that while voluntary, non-commercial associations of adults should enjoy a fairly absolute right to exclude unwanted members, that there was a significant and unscrutinized assumption in Dale, namely that the same standard applies to associations of children as applies to voluntary associations of adults. If the Boy Scouts had been an association of adults, then the outcome in Dale would have been correct, although not for the majority’s reasons. But given that children’s constitutional rights are not afforded the same protection and given the powerful interest in exposing children to a wide range of experiences and sources of ideas to prepare them for autonomous adulthood, Dale may have been wrongly decided. Mandatory integration of children’s associations may be constitutional even though forced integration of adults’ associations would not be.
Civil Rights and Discrimination | Constitutional Law | Jurisprudence
Date of this Version
Seana V. Shiffrin, "What's Really Wrong with Compelled Association?" (March 22, 2004). bepress Legal Series. bepress Legal Series.Working Paper 208.