PastPaperHero | Individual rights - Freedom of association

Learning Outcomes

This article explains freedom of association doctrine for the MBE, including:

the constitutional foundations in the First and Fourteenth Amendments and what counts as expressive vs intimate association;
how to spot state action and distinguish purely private conduct that falls outside First Amendment protection;
the standards of review (especially strict scrutiny) applied to laws that burden membership, advocacy, or internal group decisions;
when government may criminalize or penalize association with unlawful groups, applying the active membership–knowledge–specific intent test;
rules governing bar admission, public employment, and denial of government benefits based on group affiliation or beliefs;
the constitutionality of loyalty oaths, ideological conditions, and mandatory disclosure of membership lists or donors;
protections for political parties in structuring primaries, choosing nominees, and defining their voter base;
regulation of student and campus organizations, including limited public forums and “all-comers” policies at public universities;
analytical steps for answering MBE fact patterns involving association, such as recognizing overbroad regulations and viewpoint discrimination.

MBE Syllabus

For the MBE, you are required to understand freedom of association as part of the First Amendment, with a focus on the following syllabus points:

The distinction between expressive and intimate association and what counts as a protected association
The requirement of state action for constitutional associational claims
Government regulation of membership, including criminal groups and subversive organizations
Associational rights of political parties and in election regulation
Bar admission, professional regulation, and public employment based on group affiliation
The constitutionality of loyalty oaths and membership disclosure requirements

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is most likely protected by the constitutional right to freedom of association?
1. A private country club that excludes members on the basis of race
2. A group formed to advocate controversial political change
3. A large retail chain that refuses to hire workers over age 50
4. A state-run utility refusing to hire non-citizens
The government may constitutionally require disclosure of group membership lists if:
1. The group is a political party
2. Disclosure serves a compelling government interest and is narrowly tailored
3. The group is a private social club
4. Disclosure is for statistical purposes only
Which scenario most clearly involves state action for First Amendment purposes?
1. A private university expelling a student for joining a protest group
2. A city denying a permit for a political rally
3. A church refusing to admit non-members to worship services
4. A private employer firing an employee for supporting a union
A state bar may constitutionally deny admission to an applicant solely because the applicant is a member of an organization that advocates violent overthrow of the government only if the state proves that the applicant:
1. Is an active member who knows the organization’s illegal aims and specifically intends to further them
2. Is listed on the organization’s membership rolls for at least five years
3. Has attended at least one meeting and paid dues
4. Publicly refuses to disavow the organization’s ideology
A state university recognizes and funds student groups that agree to admit all students as members (“all-comers” rule). A religious group requires members to sign a statement of faith and is denied recognition. Its strongest constitutional argument is that:
1. The university has engaged in viewpoint discrimination
2. The all-comers rule is content-based and subject to strict scrutiny
3. The rule unconstitutionally burdens the group’s freedom of association
4. The university must fund any group that engages in religious speech

Introduction

Freedom of association is a core First Amendment right, applied to the states through the Fourteenth Amendment. It protects the ability of individuals to join together with others to express ideas, engage in political activity, and maintain certain close personal relationships without unjustified government interference.

On the MBE, this topic often appears in questions about:

Political parties and primary elections
Bar admission or public employment based on group membership
Laws requiring disclosure of membership lists or loyalty oaths
Conditions on access to government property, benefits, or recognition for groups

A precise exam approach is:

Identify state action.
Decide whether the group is an expressive or intimate association.
Ask whether government regulation significantly burdens association and, if so, whether it survives strict scrutiny.

Key Term: Expressive Association
The right to join with others to engage in activities protected by the First Amendment—such as political advocacy, public-interest litigation, issue advocacy, union organizing, or other collective expression.

Key Term: Intimate Association
The right to maintain certain close, highly personal relationships—such as marriage, family, and other small, selective, deeply committed relationships—free from unjustified government interference.

Types of Association

The Supreme Court recognizes two main categories of association for constitutional purposes.

Expressive association

Expressive associations are groups formed to engage in protected expression. Examples include:

Political parties and political advocacy groups
Civil-rights organizations, unions, and ideological clubs
Litigation-oriented groups like civil liberties organizations
Student groups organized around political, religious, or social views

Protection is strongest when:

The group’s primary purpose is advocacy or expression, and
Government regulation affects who may be a member or leader, or what the group may say or do.

Purely commercial or economic relationships—such as large businesses, standard commercial partnerships, or trade associations focused only on profit—are not automatically treated as expressive associations, although they may have some expressive components.

Intimate association

Intimate association protects relationships that are:

Relatively small in size
Highly selective in membership
Marked by deep emotional commitment and shared life

Classic examples:

Marriage
Parent–child and extended family living together
Very small, close-knit social groups

Large, casual social clubs or open-membership organizations usually do not qualify as intimate associations, although they may be protected as expressive associations if they exist to advance shared ideas.

State Action Requirement

Constitutional rights, including freedom of association, restrict only government conduct. Purely private conduct, however unfair or discriminatory, is not itself a First Amendment problem (though it may be regulated by statutes).

Key Term: State Action
Government conduct—including actions by state or local officials—or significant government involvement that is required to trigger constitutional protections.

Common state action scenarios on the MBE include:

A city, county, or state agency denying a permit or benefit
A state university granting or denying recognition or funds to groups
A state bar denying admission or disciplining an attorney
A public employer firing or disciplining an employee for associational activity

Significant state involvement also exists when:

The government encourages, commands, or enforces private discrimination (for example, enforcing a racially restrictive covenant); or
A private actor performs a function that is traditionally and exclusively governmental.

By contrast, no state action is present when:

A private employer fires an employee for political or union activity
A private university disciplines a student for group membership
A private club or church chooses its members

Constitutional arguments fail in these purely private cases, though statutory rights (e.g., anti-discrimination laws) might apply—which is outside the First Amendment and typically not tested in depth on the MBE.

Government Restrictions on Association

The government may not punish or penalize a person merely for belonging to an unpopular organization or for associating with others to advocate lawful political or social change. Guilt by association is generally forbidden.

However, the government may regulate association when:

The group is engaged in, or advocates, unlawful action, and
The individual member has the requisite mental state with respect to that illegal activity.

For public employment, public benefits, or bar admission, the government may deny a position or benefit because of group membership only if it can show all three of the following:

The organization engages in or advocates unlawful activity, such as violent overthrow of the government.
The individual is an active member who knows of the group’s illegal aims.
The individual has a specific intent to further those illegal objectives.

If any of these elements is missing, denying employment or a license solely on the basis of association violates the First Amendment.

Membership can be used as evidence in a criminal case (for example, to prove intent in a conspiracy), but membership alone cannot be made a crime unless tied to active participation and specific intent to further the organization’s illegal goals.

Key Term: Strict Scrutiny
A demanding standard of review requiring the government to prove that a regulation is necessary to achieve a compelling governmental interest and is narrowly tailored (using the least restrictive means) to that interest.

When a law significantly burdens expressive or intimate association—by dictating who may join, who may lead, or what the group may advocate—courts usually apply strict scrutiny. Many such restrictions are invalidated.

By contrast, generally applicable laws that regulate conduct (for example, tax rules, safety codes) and only incidentally burden association are often reviewed under lower scrutiny and are more likely to be upheld.

Disclosure Requirements and Membership Lists

Compulsory disclosure of membership in advocacy groups can seriously chill association, especially for unpopular organizations. Requirements to disclose membership lists are therefore subject to strict scrutiny:

The government must show a compelling interest (such as preventing actual corruption or serious threats to safety), and
The disclosure requirement must be narrowly tailored, with no less restrictive alternative (such as reporting aggregate data instead of names).

Classic exam scenarios:

A state demanding the membership list of a controversial advocacy group as a condition of allowing it to operate or litigate.
A city conditioning a parade or rally permit on disclosure of all group members.

In these situations, the disclosure requirement is almost always unconstitutional unless the state can show an unusually strong, specific need and a narrow fit.

Key Term: Membership Disclosure
A government requirement that an organization or individual reveal the identities of group members or supporters; such requirements that burden expressive association are subject to strict scrutiny.

Political Parties and Elections

Political parties are prime examples of expressive associations. They exist to advance particular political ideas and to select candidates who represent those ideas. Accordingly, political parties receive robust protection.

States have legitimate interests in:

Managing elections
Preventing fraud
Ensuring orderly primaries and general elections

They may impose reasonable, generally applicable regulations on ballot access and primaries. But when state rules severely burden a party’s ability to define its membership or choose its nominees, strict scrutiny applies.

Key exam points:

A state generally cannot force a party to open its primary to non-members (or to members of a rival party) if doing so significantly interferes with the party’s associational rights, absent a compelling interest.
Likewise, a state generally cannot bar a party from inviting independents or others to participate in its nominating process if the party chooses to do so.

So, in MBE questions about primary elections:

Identify whether the rule forces or forbids inclusion of certain voters in a party’s selection process; then
Ask whether the rule severely burdens the party’s expressive association. If so, strict scrutiny applies and the regulation is usually invalid.

Bar Membership and Professional Regulation

The bar is technically a state-created licensing system. Nevertheless, applicants and attorneys retain First Amendment associational rights.

A state may not:

Deny bar admission solely because an applicant is a member of a subversive or unpopular organization; or
Punish attorneys for representing unpopular clients or causes.

A state may:

Consider membership in an organization that advocates unlawful action if it can prove the three elements discussed earlier: active membership, knowledge of illegal aims, and specific intent to further them.
Require truthful answers to narrow, relevant questions about conduct or active support for illegal activity.

Overbroad questions that demand disclosure of all organizational memberships, regardless of relevance, or that penalize applicants for abstract beliefs or associations, violate freedom of association.

Loyalty Oaths and Ideological Conditions

Governing bodies sometimes require public employees, teachers, or bar applicants to sign loyalty oaths or ideological statements. These are closely scrutinized because they can chill association and belief.

Key Term: Loyalty Oath
A sworn promise, often required for public employment or benefits, that an individual will support certain constitutional principles or refrain from specific conduct; broad or vague loyalty oaths that penalize beliefs or general advocacy are usually unconstitutional.

Distinctions to remember:

Permissible oaths: Narrow promises to “support the Constitution” or to “oppose the overthrow of the government by force or illegal means” have been upheld, especially when violations carry only perjury penalties and the language is clear.
Impermissible oaths: Oaths requiring employees to “encourage respect for the flag” or “oppose all radical ideas” are void for vagueness and overbreadth. They can be used to punish protected speech and association.

Loyalty oaths and ideological conditions are usually judged under strict scrutiny when they penalize protected expression or association. The government must show a compelling interest and narrow tailoring; broad ideological litmus tests typically fail.

Public Employment and Government Benefits

The government has more flexibility when acting as employer or provider of benefits, but it still may not condition jobs or benefits on the surrender of core associational rights, except in narrow circumstances.

General rules:

Government may not fire or refuse to hire a person for political views or affiliations in most ordinary jobs (e.g., clerical staff), because such jobs do not depend on political loyalty.
For policymaking or confidential positions, party affiliation can sometimes be a permissible requirement (this goes primarily to freedom of speech, but associational principles overlap).
Government may not deny welfare, licenses, or access to public facilities merely because an individual belongs to a lawful advocacy organization.

For public employment or benefits based on association with illegal groups, apply the three-element test (active membership, knowledge, specific intent). Anything broader risks being an unconstitutional penalty on association.

Student Groups and Campus Access

At public universities, student organizations often claim both speech and associational rights.

Two patterns appear on the MBE:

Selective exclusion: A university denies recognition or funding to a religious or political group because it dislikes the group’s views. This is viewpoint discrimination and almost certainly invalid.
All-comers rules in limited public forums: A university opens a recognition-and-funding system to all student groups, but requires every recognized group to accept any student who wishes to join (an “all-comers” policy).

In the second pattern, the forum is a limited public forum. The university’s rules must be:

Viewpoint neutral (applied equally regardless of the group’s ideology), and
Reasonably related to a legitimate educational interest (e.g., fostering inclusion and equal access).

Under current doctrine, an all-comers policy that applies uniformly to all groups generally does not violate freedom of association, even though it limits the group’s ability to choose its members. The key is that the group remains free to meet and express its views; only access to official recognition and funding is conditioned on the neutral rule.

Loyalty Oaths and Disclosure Requirements

Government-imposed loyalty oaths or requirements to disclose group membership are subject to strict scrutiny when they burden expressive association.

Key Term: Loyalty Oath
A government-required sworn promise concerning support for constitutional principles or opposition to certain conduct; when drafted broadly, such oaths can unconstitutionally penalize beliefs and associations.

They are generally invalid unless the government can show:

A compelling need directly related to the job or benefit, and
The least restrictive means of achieving that need (no broader than necessary and not targeting mere beliefs or abstract advocacy).

Worked Example 1.1

A state enacts a law requiring all public-school teachers to disclose membership in any organization that advocates changes to government policy. A teacher refuses and is fired. Is the law constitutional?

Answer:
No. The law burdens freedom of association by forcing disclosure of membership in advocacy organizations. Advocacy of policy change is core political speech. Forced disclosure is subject to strict scrutiny. The state has not shown a compelling interest or narrow tailoring; more targeted means (such as investigating actual unlawful activity) are available. The law is almost certainly unconstitutional.

Worked Example 1.2

A city denies a permit for a political rally because the organizers refuse to provide a list of all members of the sponsoring organization. Is this denial valid?

Answer:
No. Conditioning a permit on disclosure of group membership substantially burdens expressive association. The city would need a compelling interest and a narrowly tailored requirement, which is rarely satisfied in this context. Ordinary crowd-control or safety concerns can be addressed by less restrictive measures. The denial is unconstitutional.

Worked Example 1.3

A state bar denies admission to an applicant solely because she is a member of an organization that advocates violent overthrow of the government. There is no evidence that she has participated in any illegal acts or intends to further the group’s unlawful aims. Is the denial constitutional?

Answer:
No. The state may not deny bar admission solely on the basis of group membership unless it proves that the applicant is an active member who knows of the group’s unlawful purposes and specifically intends to further those purposes. Mere membership, without proof of knowledge and specific intent, cannot justify denial of a license.

Worked Example 1.4

A city clerk, employed by the city, is fired after it is revealed that she belongs to an environmental organization that frequently sues the city over pollution policies. She does no work on environmental matters in her job. Does her firing violate freedom of association?

Answer:
Yes. The clerk is a public employee in a non-policymaking position. She may not be fired merely for associating with a lawful advocacy group that opposes city policies. Absent proof that her membership is tied to unlawful conduct or that political loyalty is essential to her job, the firing is an unconstitutional penalty on protected association.

Worked Example 1.5

A public law school recognizes student groups and funds them from mandatory student activity fees, but only if they agree to admit all students as members. A religious group requires members to sign a statement of faith and is denied recognition. Does the denial violate the group’s freedom of association?

Answer:
Probably not. The law school has created a limited public forum. Its “all-comers” policy is viewpoint neutral (it applies to all groups regardless of ideology) and reasonably related to legitimate educational interests, such as ensuring equal access and avoiding discrimination disputes. The group remains free to meet and express its views without official recognition, so the denial does not violate the Constitution under current doctrine.

Exam Warning

The First Amendment limits government action only. Private clubs, private universities, and private employers are not bound by the First Amendment, even when they discriminate in their membership or hiring, unless there is significant government involvement. Do not treat purely private decisions as constitutional violations on the MBE.

Also, do not confuse:

Punishment for conduct (e.g., violent acts, conspiracies), which can be regulated even if done in groups, with
Punishment for mere association, which is usually unconstitutional unless the government proves active membership, knowledge, and specific intent to further illegal objectives.

Revision Tip

When analyzing a freedom of association question, move systematically:

Is there state action?
Is the association expressive or intimate (or both)?
Does the regulation significantly burden who may belong, who may lead, or what the group can advocate?
If so, can the government satisfy strict scrutiny—a compelling interest and narrow tailoring?
If the case involves denial of employment or bar admission based on group membership, ask whether the state can prove active membership, knowledge of illegal aims, and specific intent to further them.

Key Point Checklist

This article has covered the following key knowledge points:

Freedom of association is protected by the First Amendment and applies to the states through the Fourteenth Amendment.
Only expressive and intimate associations receive strong constitutional protection.
State action is required for constitutional claims; private conduct alone does not implicate the First Amendment.
Government may not impose penalties based solely on membership in an unpopular group; it must prove active membership, knowledge of illegal aims, and specific intent to further them to justify employment or licensing consequences.
Laws that significantly burden association (e.g., forced membership disclosure, loyalty oaths, or restrictions on party primaries) are usually subject to strict scrutiny.
Disclosure of membership lists is almost always invalid unless necessary to serve a compelling interest and narrowly tailored.
Political parties are strongly protected expressive associations; election regulations that severely burden their internal choices must satisfy strict scrutiny.
Bar admission and public employment decisions may not be based on mere group membership or abstract beliefs.
Loyalty oaths must be narrow and clear; broad, vague, or ideological oaths that penalize protected beliefs or associations are unconstitutional.
In limited public forums such as university recognition systems, neutral “all-comers” policies may be valid, but selective denial of recognition based on viewpoint is not.

Key Terms and Concepts

Expressive Association
Intimate Association
State Action
Strict Scrutiny
Membership Disclosure
Loyalty Oath

Individual rights - Freedom of association