FREEDOM OF ASSOCIATION AND BELIEF

Question 1

NATURE OF THE RIGHT

Answer 1

Although the First Amendment does not mention a right of freedom of association, the right to join together with other persons for expressive or political activity is protected by the First Amendment. However, the right to associate for expressive purposes is not absolute. It may be infringed to serve a compelling government interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms, at least when the infringement would not significantly affect an association’s right to express its viewpoints. However, in some cases, as noted below, a more lenient standard will apply.

Question 2

ELECTORAL PROCESS

Answer 2

Laws regulating the electoral process might impact on First Amendment rights of speech, assembly, and association. The Supreme Court uses a balancing test in determining whether a regulation of the electoral process is valid: If the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states’ important regulatory interests. [Burdick v. Takushi, 504 U.S. 428 (1992)—upholding prohibition against write-in candidates

Question 3

Ballot Regulation

Answer 3

a.
Signature Requirements
The Court has found that the interest of running an efficient election supports a requirement that candidates obtain a reasonable number of signatures to get on the ballot. [Munro v. Socialist Workers Party, 479 U.S. 189 (1986)—1%] Similarly, a state’s interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of the names and addresses of persons who sign ballot petitions. [Doe v. Reed, 561 U.S. 186 (2010)] However, the Court struck down a severe ballot restriction requiring new political parties to collect twice as many signatures to run for county office as for state office.

Question 4

Primary Voting Regulations

Answer 4

A state may enforce a party rule requiring that a person be registered as a member of the party within a reasonable amount of time prior to a primary to be able to vote. [Rosario v. Rockefeller, 410 U.S. 752 (1973)] It may also require that voters in a party’s primary be registered either in the party or as independents. Rationale: The burden on the party’s associational rights is not severe. Thus, strict scrutiny does not apply and the state’s important regulatory interests (e.g., in preserving political parties as viable identifiable groups, preventing party raiding, etc.) are sufficient to justify the restriction. [Clingman v. Beaver, 544 U.S. 581 (2005)] However, a state may not prohibit a party from allowing independent voters to vote in the party’s primary if the party wishes to allow independent voters to participate; such a requirement constitutes a severe burden on the associational rights of the party and can be justified only if it is narrowly tailored to serve a compelling interest. [

Question 5

Single Party Limitation

Answer 5

A state law that prohibits an individual from appearing on the ballot as the candidate of more than one party does not impose a severe burden on the association rights of political parties. The state’s interest in ballot integrity and political stability are “sufficiently weighty” to justify the law.

Question 6

Nonpartisan” Blanket Primary

Answer 6

A state primary ballot law providing that candidates self-identify their party preference and that the two top vote getters advance to the general election does not on its face violate the association rights of political parties. Rationale: (1) The law does not state that any candidate is a party’s nominee, (2) there was no evidence that voters would be confused by the self-identifications, and (3) the state may design a ballot that will make this clear. [

Question 7

Party Regulation

Answer 7

The state has less interest in governing party activities than in governing elections in general. Thus, the Court has held invalid a statute prohibiting the governing committee of a political party from endorsing or opposing candidates in primary elections. [Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989); and see California Democratic Party v. Jones, 530 U.S. 567 (2000)—state cannot require political parties to allow nonparty members to vote in the party’s primary election] Similarly, it has held invalid state regulations concerning the selection of delegates to a national party convention and the selection of candidates at such elections.

Question 8

Judicial Candidate Selection

Answer 8

A state law that permits political parties to choose nominees for state judgeships at state conventions does not violate the freedom of association rights of candidates for judgeships simply because the historic domination of party leaders results in strongly favoring those that they support. Rationale: This process “has been a traditional means of choosing party nominees

Question 9

Limits on Contributions

Answer 9

A statute limiting election campaign contributions is not tested under a strict scrutiny standard; rather, it must be “closely drawn” to match a “sufficiently important interest”—an intermediate scrutiny standard

Question 10

To Political Candidate

Answer 10

Laws limiting the amount of money that a person or group may contribute to a political candidate are valid, since the government has a sufficiently important interest in stopping the fact (or appearance) of corruption that may result from large contributions. Moreover, such laws do not substantially restrict freedom of expression or freedom of association (as long as the contributor may spend his money directly to discuss candidates and issues

Question 11

Equalizing Large Expenditures

Answer 11

A law increasing contribution limits for a candidate whose wealthy opponent achieves an advantage by spending personal funds (exceeding $350,000) violates the First Amendment. Rationale: Although Congress may raise contribution limits for both candidates in situations of this kind, “penalizing” a self-financing candidate who robustly expresses the right to advocate his own election cannot be justified by leveling opportunities for candidates of different personal wealth

Question 11

Equalizing Large Expenditures

Answer 11

A law increasing contribution limits for a candidate whose wealthy opponent achieves an advantage by spending personal funds (exceeding $350,000) violates the First Amendment. Rationale: Although Congress may raise contribution limits for both candidates in situations of this kind, “penalizing” a self-financing candidate who robustly expresses the right to advocate his own election cannot be justified by leveling opportunities for candidates of different personal wealth

Question 12

To Ballot Referendum Committee

Answer 12

The government may not limit contributions to a political committee that supports or opposes a ballot referendum (as opposed to one that supports a political candidate). Such a limitation on contributions to influence referendum elections violates the freedoms of speech and association.

Question 13

Disclosure of Contributors or Recipients of Money

Answer 13

The government may require a political party or committee to disclose the names of contributors or recipients of money to or from the party or committee. However, if the party or committee can show a “reasonable probability” that disclosure will cause harm to the party, committee, or private individuals, they have a First Amendment right to refuse to make such disclosures

Question 14

Aggregate Contribution Limits Unconstitutional

Answer 14

The government may not limit the aggregate amount one person or entity contributes to political candidates or committees during an election even though it may limit the amount given to a single candidate. Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process. Spending large sums of money in connection with elections, but not in an effort to control the exercise of a specific officeholder’s duties, does not give rise to such corruption, nor does the possibility that the contributor may garner “influence over or access to” elected officials or political parties.

Question 15

Limits on Expenditures

Answer 15

As discussed above, the government may limit the amount that a person is permitted to contribute to another’s campaign. However, the government may not limit the amount that a person expends on his own campaign. [Buckley v. Valeo, supra] Neither may the government limit the amount that a person spends to get a
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candidate elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with that of the candidate—i.e., the expenditures must be independent of the candidate and not disguised contributions. Thus, corporations, unions, etc., may spend whatever they desire to get a candidate elected

Question 16

Compare—Regulations of Core Political Speech

Answer 16

Regulation of “core political speech” must be distinguished from regulation of the process surrounding elections. Regulation of “core political speech” will be upheld only if it passes muster under strict scrutiny

Question 17

Prohibiting Any Election Day Campaigning

Answer 17

A state law prohibiting any campaigning on election day has been held invalid as applied to a newspaper urging people to vote in a certain way. The right to comment on political issues is one of the most essential elements of free speech, and such conduct by newspapers would pose little danger to conducting elections

Question 18

Compare—Hundred-Foot Limit

Answer 18

A law prohibiting campaign activity within 100 feet of a polling place is valid. Even though the law is content based and concerns an essential element of free speech, it is necessary to serve the compelling interest of preventing voter intimidation and election fraud

Question 19

Prohibiting Anonymous Campaign Literature

Answer 19

Laws prohibiting distribution of anonymous campaign literature involve core political speech and have been stricken because they were not narrowly tailored to a compelling state interest.

Question 20

Prohibiting Judge Candidates from Announcing Their Views

Answer 20

A rule prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. This is both a content-based restriction and a restriction on core political speech. In either case, it can be justified only if it is necessary to a compelling state interest. Two state interests were suggested to support the rule here: It is necessary to maintain an impartial judiciary and it is necessary to preserve the appearance of impartiality. The Court found that the rule is “woefully underinclusive” and so is not tailored at all toward achieving these goals. For example, it allows candidates to show bias toward political parties while it prohibits them from stating an opinion about political issues. The Court also found that finding judges without any preconceptions in favor of particular legal views is not a compelling interest
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because it would be both impossible to find such a person and undesirable

Question 21

Distinguishing Political Speech from Candidate Advocacy

Answer 21

An ad concerning a political issue, even if sponsored by a corporation, run during an election campaign will be considered to be core political speech—rather than candidate advocacy—unless it is susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate. [Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)—ad urging voters to contact their senators to encourage them to end a filibuster of federal judicial nominations was core political speech—and could not be banned—even when one of the senators was running for re-election]

Question 22

Solicitation of Campaign Funds by Judicial Candidates

Answer 22

A state may ban personal solicitation of campaign funds by judicial candidates. Rationale: If judicial candidates personally ask for money, individuals might feel obligated to donate in the hopes of garnering a favor from the candidates or from fear of retribution for not donating. The ban withstands strict scrutiny because it “advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech.”

Question 23

Legitimate Government Interest

Answer 23

Regardless of which standard is used to evaluate an alleged restriction on political speech (that is, the strict or closely drawn scrutiny), the government must demonstrate that it is pursuing a legitimate objective. Notably, the Court has identified only one objective that can justify a restriction on political speech—the prevention of quid pro quo corruption, including the appearance of corruption—and has rejected other asserted justifications, such as the desire to reduce the amount of money in politics, level electoral opportunities, or limit the general influence a donor may have over an elected official. Further, the government must present findings that demonstrate an actual need to address a special problem; mere conjecture is inadequate. [Federal Election Commission v. Ted Cruz for Senate, 142 S. Ct. 1638 (2022)—provision limiting the repayment of loans made by a candidate to their own campaign violates the First Amendment because it burdens core political speech without proper justification

Question 24

BAR MEMBERSHIP AND PUBLIC EMPLOYMENT

Answer 24

The government often requires persons who accept government jobs to submit to loyalty oaths and refrain from certain conduct (e.g., campaigning). Such regulations often impact upon the freedom of speech and association.

Question 25

Restraints on Speech Activities of

Answer 25

Government Employees
Under the First Amendment, speech generally cannot be regulated or punished based on the content of the speech unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.

Question 26

Speech Made Pursuant to Official Duties

Answer 26

A government employer may punish a government employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties. This is true even if the speech touches on a matter of public concern

Question 27

Other Speech

Answer 27

If speech is not made pursuant to an employee’s official duties, two tests apply. If a government employee’s speech does not involve a matter of public concern, the courts give the government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment. However, if a matter of public concern is involved, courts must balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in efficient performance of public service.

Question 28

Petition Clause Claims Treated Similarly

Answer 28

A government employee’s right under the First Amendment to petition the government for redress is governed by the principles discussed above. Thus, unless a government employee’s grievance relates to a matter of public concern, it is not a constitutionally protected activity, and the employee may not bring a constitutional tort suit (under 42 U.S.C. section 1983) alleging that his employer took retaliatory actions in violation of the employee’s right to petition. [

Question 29

Participation in Political Campaigns

Answer 29

The federal government may prohibit federal executive branch employees from taking an active part in political campaigns. The rationale is twofold: to further nonpartisanship in administration and to protect employees from being coerced to work for the election of their employers

Question 30

Bans on Receiving Honoraria

Answer 30

A provision of the Ethics in Government Act banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to “rank and file” employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and thus can be justified only if the government can show that the employees’ and their potential audiences’ rights are outweighed by the necessary impact the speech would have on actual operation of the government. The government failed to cite any evidence of misconduct related to honoraria by the rank and file employees, and so failed to meet the burden here.

Question 31

Patronage

Answer 31

The First Amendment freedoms of political belief and association forbid the hiring, promotion, transfer, firing, or recall of a public employee because of the person’s political views or political party affiliation unless the hiring authority
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demonstrates that party affiliation or beliefs are appropriate requirements for the effective performance of the public office involved, e.g., “policymaking” or “confidential” nature of work.

Question 32

Loyalty Oaths

Answer 32

It is permissible for the federal government to require employees and other public officers to take loyalty oaths. However, such oaths will not be upheld if they are overbroad (i.e., prohibit constitutionally protected activities) or are vague so that they have a chilling effect on First Amendment activities

Question 33

Overbreadth

Answer 33

1)
Knowledge of Organization’s Aim Required
Public employment cannot be denied to persons who are simply members of the Communist Party because only knowing membership with “specific intent to further unlawful aims” is unprotected by the First Amendment

Question 34

2)
Advocacy of Doctrine Protected

Answer 34

A political party may not be denied a place on the ballot for refusing to take a loyalty oath that it does not advocate violent overthrow of the government as an abstract doctrine. The First Amendment forbids “statutes regulating advocacy that are not limited to advocacy of action

Question 35

Vagueness

Answer 35

1)
Oaths Upheld
Compare the following oaths that have been upheld:
a)
To Support the Constitution
An oath that required public employees and bar applicants to “support the Constitution of the United States” and the state constitution has been upheld. [Connell v. Higginbotham, 403 U.S. 207 (1971)]
b)
To Oppose the Overthrow of the Government
An oath required of all state employees “to oppose the overthrow of the government . . . by force, violence, or by an illegal or unconstitutional method” has also been upheld. The Court read this oath as akin to those requiring the taker simply to “support” the Constitution, “to commit themselves to live by the constitutional processes of our system.” Moreover, the oath provided fair notice, because its violation could be punished only by a prosecution for perjury, which required proof of knowing falsity.

Question 36

2)
Oath Not Upheld

Answer 36

A loyalty oath for public employees that they “promote respect for the flag and . . . reverence for law and order” is void for vagueness, since a refusal to salute the flag on religious grounds might be found in breach thereof.

Question 37

Disclosure of Associations

Answer 37

Forcing disclosure of First Amendment activities as a condition of public employment, bar membership, or other public benefits may have a chilling effect. Thus, the state cannot force every prospective government employee to disclose every organizational membership. Such a broad disclosure has insufficient relation to loyalty and professional competence, and the state has available less drastic means to achieve its purpose. [Shelton v. Tucker, 364 U.S. 479 (1960)] The state may inquire only into those activities that are relevant to the position. If the candidate fails to answer relevant questions, employment may be denied. [Konigsberg v. State Bar of California, 366 U.S. 36 (1961)] The Court has extended this analysis to charitable disclosures. [Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021)—invalidating a state statute requiring charities to disclose donor information, given the lack of narrow tailoring]

Question 38

Fifth Amendment Limitation

Answer 38

If the job candidate refuses to answer on a claim of the privilege against self-incrimination, denial of the job violates the Fifth and Fourteenth Amendments. [Spevack v. Klein, 385 U.S. 511 (1967)] However, if individuals are ordered by appropriate authorities to answer questions “specifically, directly, and narrowly relating to their official duties,” and they refuse to do so by claiming the privilege against self-incrimination, they may be denied the job or discharged without violating the Fifth Amendment, if they were given immunity from the use of their answers or the fruits thereof in a criminal prosecution. [

Question 39

Practice of Law

Answer 39

Regulation of the legal profession may conflict with the freedom of association rights of certain groups because it may impair their ability to band together to advise each other and utilize counsel in their common interest

Question 40

Countervailing State Interest Required

Answer 40

To overcome a group’s right to exercise its First Amendment rights, the state must show a substantial interest, such as evidence of objectionable practices occurring or an actual or clearly threatened conflict of interest between lawyer and client.

Question 41

SCHOOL SPONSORSHIP OF EXTRACURRICULAR CLUBS

Answer 41

The Supreme Court has held that the compelling interest test does not apply to infringement cases involving public school sponsorship of extracurricular clubs; instead, the test used in limited-public-forum-speech cases applies—sponsorship of associations can be subject to regulation that is viewpoint neutral and reasonably related to a legitimate government interest.