Sign Here, Please: The First Amendment Implications of Requiring Loyalty Oaths for Admission to Political EventsGeorge Washington University Law Review (2006)
AbstractThe 2003-2004 presidential election cycle was the first to be significantly affected by a number of new forms of campaigning. Internet fundraising, blog journalism, and 527 organizations all burst onto the scene. Yet it was the most traditional method, the campaign rally, that gave rise to one of the most controversial events of the election season - requiring loyalty oaths for admission. This Note focuses on the constitutionality of requiring a loyalty oath for admission to an ostensibly privately-organized campaign event attended by a high-ranking public official like the President or Vice-President of the United States, or other major party candidate. While the rallys in question in 2004 were ostensibly private events, I argue that because there existed such extensive entwinement between public and private actors, organizations, financing, and regulation, the actions of event participants should be considered state action, which would thus subject those actions to the constraints of the federal Constitution. Excluding potential audience members because of a refusal to sign a loyalty oath violates those individuals' general constitutional right to be free from expression compelled by the government. Part I provides a examination of the modern state action doctrine, including an analysis of the Supreme Court's redefinition of the doctrine in Brentwood Academy v. Tennessee Secondary School Athletic Association, which potentially significantly expands the situations in which ostensibly private action may be considered state action for purposes of constitutional review. Part II explores how requiring a loyalty oath for admission to a political rally (or other such event) can be considered state action under Brentwood Academy. Part III argues that while it is preferable, given modern theoretical understandings of the purposes underlying the First Amendment, that such a practice be abandoned altogether, event organizers can avoid a constitutional violation by fully reimbursing the government for all public expenses related to events.
Publication DateSpring 2006
Citation InformationNote, "Sign Here, Please: The First Amendment Implications of Requiring Loyalty Oaths for Admission to Political Events" George Washington University Law Review 74.2 (2006): 345-364.