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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. Thereafter, during the s and the early s, the Court used 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 , the Court upheld the refusal of the state to certify an applicant for admission to the bar. For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association. Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion and to sustain proceedings against the Communist Party and its members.

United States v. Robel held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.

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. 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.


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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. 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. Pennsylvania ,. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. Cooper , and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it. 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.

Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths, obscenity and indecency, and restrictions on public demonstrations. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech such as picketing or demonstrating.

With respect to most speech restrictions to which the Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i. Speech restrictions to which the Court does not apply strict scrutiny include those that are not content-based time, place, or manner restrictions; incidental restrictions and those that restrict categories of speech to which the Court accords less than full First Amendment protection campaign contributions; commercial speech.

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The Court uses tests closely related to one another in free speech cases in which it applies intermediate scrutiny. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. The need for independent proof varies with the point that has to be established.

But we must be careful about substituting common assumptions for evidence when the evidence is as readily available as public statistics and municipal property evaluations, lest we find out when the evidence is gathered that the assumptions are highly debatable. Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard for determining the presence of First Amendment protection.

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 , a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. 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.

One question that has arisen is whether the government may compel a person to publicly declare or affirm a personal belief. In Minersville School District v. Barnette , a six-to-three majority of the Court overturned Gobitis. It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.

In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment. The principle of Barnette , however, does not extend so far as to bar a 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.

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By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial speech, or when it compels the labeling of foreign political propaganda. The right of a commercial speaker not to divulge accurate information regarding his services is not. To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.

Despite the Cantwell dictum that freedom of belief is absolute, 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. Douds , 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.

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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 that Congress could prevent.

When the same issue returned to the Court years later, three five-to-four decisions left the principles involved unclear. Of course, it 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.

Freedom of association as a concept thus grew out of a series of cases in the s and s in which certain states were attempting to curb the activities of the National Association for the Advancement of Colored People.


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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. Applying the concept in subsequent cases, the Court, in Bates v. Tucker that, though a state had a broad interest 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; and overturned a state court order barring the NAACP from doing any business within the state because of alleged improprieties.

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. 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. For there is no longer any doubt that the First and Fourteenth Amendment s protect certain forms of orderly group activity.

In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys; in the second the union retained attorneys on a salaried basis to represent members; in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery. Thus, a right to associate to further political and social views is protected against unreasonable burdening, but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was born.

In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. Rotary Club of Duarte , the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership.

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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. Irish-American Gay Group. In Boy Scouts of America v. The major expansion of the right of as-sociation has occurred in the area of political rights. Rhodes has passed on numerous state restrictions that limit 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.

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. These rights are circumscribed, however, when the State gives a party a role in the election process—as.

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois 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. In , the Court extended Elrod and Branti to protect independent government contractors.

The protected right of association enables 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, although 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.

We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. We have required that the subordinating interests of the State must survive exacting scrutiny. It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.

For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act. Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment.

Street , where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes. In Abood v. Detroit Bd. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.