Associational Speech

Ashutosh Bhagwat, University of California, Hastings

Abstract

This article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. In Part I, I explore the doctrinal roots of the right of association, and also review recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that historically, the assembly, petition, and association rights were important, independent rights of co-equal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition and association, should be perceived as interrelated, and as mutually reinforcing mechanisms designed to advance self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including notably incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions about what the theory of associational speech teaches us about the basic nature of free speech, and about the interrelationships between the various provisions of the First Amendment, including the Religion Clauses.