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The right to freedom of expressive association and the press. . by Christopher R. Edgar INTRODUCTION I. THE LEGAL FORMULATION OF THE RIGHT TO EXPRESSIVE ASSOCIATION
A. Expression Group
1. Unified message
2. Commercial vs. noncommercial
B. Deterrent Effect
II. THE PRESS AND CONTENT-NEUTRAL GOVERNMENTAL ACTION
A. Cases in Which a Balancing Test Was Inappropriate
B. Cases in Which a Balancing Test Would Have Been
Appropriate
1. Statutory/regulatory prohibitions on group expressive
activity
2. Discretionary governmental actions triggered by group
expressive activity
III. THE PRESS AND THE PARADIGM CASES
A. The Discrimination Context
B. The Disclosure Context
CONCLUSION INTRODUCTION Although courts often express reservations about defining "the press," (1) they are rarely reserved in their praise of the press as an institution. As is often said, the press serves the important functions of exposing political corruption and unresponsiveness to the electorate (2) and informing the public about the social and economic condition of the polity to promote more educated choices in the voting booth. (3) Its effective performance of these functions makes the press an institution well-suited to advancing the goals that the First Amendment, in the view of the judiciary, was designed to achieve: among others, the promotion of open debate on policy proposals to arrive at the best possible solutions to social problems, (4) the prevention of governmental control of the public through misinformation, (5) and the deterrence of corruption and malfeasance by governmental actors. (6) It is thus incongruous that courts have not historically afforded the press the protection of a key First Amendment doctrine: the right to freedom of expressive association. The right to freedom of expressive association prohibits governmental actions (7) that have the effect of deterring persons from congregating in groups for the purpose of performing expressive activity. (8) This protection is essential to ensuring that a plurality of views reaches a wide audience, since individuals engaged in solitary expressive activity would have great difficulty making their opinions heard. By "expressive activity," I mean any activity afforded some degree of protection by the Speech Clause of the First Amendment, (9) which restrains governmental actors from making any law or taking any action "abridging the freedom of speech." (10) If an activity is protected by the Speech Clause, the First Amendment protects the people's right not only to engage in the activity but also to organize for the purpose of engaging in it. For example, just as the government cannot revoke a person's passport for advocating communism because such advocacy constitutes a protected expressive activity, so too the government cannot revoke a person's passport by virtue of his membership in the Communist Party. Such an action would violate his right to expressive association by penalizing him for associating with his fellow party members for the purpose of disseminating communist doctrines. (11) I will call a group of persons congregating for the purpose of engaging in expressive activity an "expressive group." (12) Prime examples of expressive groups in the Supreme Court's jurisprudence include political parties, (13) legal aid groups, (14) and nonprofit organizations dedicated to the improvement of their members' skills and character. (15) Governmental actors rarely prohibit the activities of specific expressive groups outright. (16) More often, governmental actors harm expressive groups by passing content-neutral statutes--i.e., statutes not passed with the purpose of suppressing discussion of a particular subject matter or viewpoint (17)--that have the effect of imposing a cost on group expressive activities and hence deterring people from engaging in them. Governmental actors typically impose these burdens in one of three ways: (18) mandating that an expressive group admit a person it does not desire into its membership; (19) requiring that an expressive group disclose the identities of its members and affiliates, thus subjecting those persons to potential harassment and embarrassment; (20) and explicitly prohibiting or penalizing a given type of group expressive activity. (21) When an expressive group proves that a governmental action has a deterrent effect upon its expressive activity, the courts employ a balancing test that weighs the social cost of burdening the group's expressive activity against the cost of prohibiting the government from doing what it seeks to do. (22) A social cost results if the government is permitted to hinder expressive groups' attempts to congregate, because the courts consider an organized group of speakers capable of disseminating a message in a more persuasive fashion and to a wider audience than the group's members would be capable of doing alone. (23) When such groups are less able to effectively disseminate their messages, the populace loses the benefit of the information and perspectives that the groups could have provided on issues of public importance. If the social cost of diminishing the ability of the members of the group to engage in effective expressive activity outweighs the social cost of prohibiting the government from taking the action it desires to take, the First Amendment bars the government from taking its preferred action. As noted above, courts highly value the expressive activities of the press. (24) Thus, one would think that a governmental act that deterred the employees or affiliates of a press entity (i.e., an organization formed with the purpose of publicly disseminating information (25)) from banding together to engage in the collection and dissemination of news would be a clear case calling for the application of the freedom of association balancing test. Surprisingly, however, press litigants tend not to raise freedom of association claims when challenging content-neutral governmental acts that deter them from engaging in expressive association. (26) Instead, press litigants typically argue that the government is impairing their rights under the Press Clause of the First Amendment, (27) despite the fact that the courts have generally declined to infuse the Press Clause with legal content. (28) Moreover, even though press litigants do not tend to make freedom of association claims against content-neutral restrictions, one might reasonably expect the courts to refer to freedom of association jurisprudence when considering press entities' Press Clause-based claims against content-neutral governmental acts. After all, the courts have not historically imposed rigid boundaries between the various doctrines and causes of action the First Amendment provides. (29) However, courts have not traditionally referred to freedom of association jurisprudence when adjudicating Press Clause claims by media entities against content-neutral governmental actions. When press entities challenge governmental acts that allegedly deter the press from engaging in group expressive activity, the courts' typical response has been that the First Amendment does not afford the press any special immunity from content-neutral governmental actions. (30) Courts reject such challenges without applying the balancing test commonly associated with expressive association claims, i.e., without inquiring into the extent of the harm to the press entity involved and the harm that prohibiting the government from taking its preferred action would entail. (31) In this Note, I will contend that the courts' refusal to apply a balancing test to First Amendment claims by the press against content-neutral laws is inconsistent with the Court's formulation of the right to freedom of expressive association in cases not involving press entities. Press entities are expressive groups, and thus they deserve the same right of expressive association that the courts have conferred on other organizations. (32) When a press entity challenges a content-neutral governmental action on the ground that such action impermissibly deters the entity from engaging in group expressive activity, courts should protect the press entity's freedom of association by balancing the public interest in hearing the speech of the press entity against the interest of the government in taking its preferred action. (33) This Note will proceed in three Parts. Part I will describe in greater detail the criteria that First Amendment case law requires a party claiming the protection of the right to freedom of expressive association to meet in order to invalidate a governmental act. As I discuss further below, greater elucidation of the criteria a litigant must meet to prevail under the freedom of association doctrine is necessary--both because the scope of the doctrine is a highly contentious issue among courts and scholars, and because a close examination of existing law will answer many of the objections readers are likely to entertain to the notion that press entities should be afforded the protection of the doctrine. Part II will describe the courts' current approach to claims that content-neutral governmental actions abridge press entities' First Amendment rights by deterring expressive association. I will show that the courts have treated press entities differently from other expressive groups in similar factual situations. Finally, Part III will provide guidance regarding how the courts might apply the freedom of association doctrine to press entities' First Amendment claims in the future by describing paradigm cases in which the courts should afford press entities the doctrine's protection. I. THE LEGAL FORMULATION OF THE RIGHT TO EXPRESSIVE ASSOCIATION The legal test courts employ to determine whether a particular governmental action infringes upon an expressive group's associational rights has evolved as follows. An expressive group claiming that its right of expressive association is being violated by a governmental action must meet three criteria. First, the claimant must show that it constitutes an expressive group--meaning, as noted above, (34) that it is a group of people engaged in joint expressive activity. Second, the claimant must demonstrate that the governmental action challenged has the effect of deterring the people in the group from banding together for expressive purposes. Finally, if the group can meet the first two requirements, a court will afford the group the opportunity to show that the social cost resulting from the diminution in the effectiveness of its expressive activity outweighs the cost to society of preventing the government from taking the action at issue. Although this last requirement is clearly important to the outcome of a freedom of association claim, resolving the balancing inquiry involved is a highly fact-specific process, and it is thus difficult to make helpful generalizations concerning its operation. As many writers have acknowledged, it is nearly impossible to devise a catchall formula for calculating the relative costs of either allowing or prohibiting a governmental action. (35) Thus, I will discuss only the first two elements--the need to engage in an underlying expressive activity and the need to show a deterrent effect on one's ability to associate for expressive purposes. A. Expressive Group According to my conception of existing law, an entity making a freedom of expressive association claim must meet two simple criteria in order to be an expressive group. First, a claimant must be "expressive," i.e., engaged in an activity protected by the Speech Clause of the First Amendment as noted above. (36) Second, it must be a "group," i.e., multiple people acting in concert. The Court's recent articulation of this requirement in Boy Scouts of America v. Dale (37) is clear by the standards of this area of law: "[T]o come within [the] ambit [of the right to freedom of expressive association], a group must engage in some form of expression, whether it be public or private." (38) Recent decisions in which the Court has denied that a claimant possesses expressive-group status--as in a case involving a dance hall owner's claim that persons engaged in social dancing constituted an expressive group (39)--also emphasize the point that some sort of expressive activity is necessary to create an expressive group. (40) Elsewhere, the Court has defined "expression" as activity protected by the Speech Clause, thereby demonstrating that underlying Speech Clause activity is necessary to make a group expressive in nature. (41) Beyond the necessity of engaging in expressive activity and being a group, however, I part company with many commentators on the scope of the freedom of expressive association doctrine. In my view, the fulfillment of those criteria is both necessary and sufficient to establishing that a claimant is an expressive group. However, although most commentators agree that it is necessary for an expressive group to be engaged in an underlying expressive activity and to consist of multiple people, (42) many do not believe that these factors are alone sufficient to make a group expressive. Commentators often argue that two additional criteria must be met by claimants wishing to show that they are expressive groups. First, some argue that an expressive group must disseminate a unified message through the expressive activities in which it engages. (43) A group conveys a "unified message" when its members engage in cooperative activity with the common purpose of presenting a single viewpoint to the public. (44) The writers for a typical commercial newspaper (i.e., one distributed for profit) do not share a unified message, because they collectively produce an amalgamation of facts and opinions that are selected for the interest they are likely to provoke in consumers rather than the viewpoints they convey and the actions they are likely to convince readers to take. (45) Thus, from the perspective of an advocate of the unified-message criterion, the owners and employees of a commercial newspaper are not an expressive group. However, a commercial newspaper does constitute an expressive group by my definition because its members congregate to engage in expressive activity (i.e., the dissemination of news to the public). (46) Since a commercial newspaper is a press entity, the unified-message criterion--if it accurately represents the law--is inconsistent with my thesis.
| | Second, some believe that to be expressive, a group must keep the level of "commercial activity" it engages in below a certain threshold. (47) Although the Court has not provided either an exhaustive definition of "commercial activity" for First Amendment purposes or clear criteria for determining whether an organization's level of such activity crosses the threshold, Justice O'Connor--the main proponent of the expressive/commercial distinction on the Court--has indicated that "commercial activity" includes the manufacturing of goods, the purchase and sale of goods and services, and the recruitment and training of employees. (48) Like the unified-message criterion, the low-commercial-activity criterion is inconsistent with the thesis of this Note. This point can be demonstrated by looking again at the example of a commercial newspaper. Although the threshold commercial-activity requirement is amorphous--even by its advocates' admission (49)--most readers would probably acknowledge that a commercial, for-profit newspaper engages in a substantial amount of commercial activity; commercial newspapers must sell both copies of their publication and advertising space, purchase raw materials, and employ personnel. Hence, under the commercial-activity criterion, a commercial newspaper is not an expressive group and thus not entitled to the right to freedom of expressive association. However, as noted above, such a publication is indeed an expressive group under my formulation. The unified-message and low-commercial-activity criteria, if they must truly be fulfilled in order to render a group of persons engaged in cooperative action expressive, pose difficulties for the thesis that press entities are expressive groups and thus entitled to the protection of the freedom of association doctrine. However, I do not believe that the law requires these criteria to be fulfilled. Thus, the thesis of this Note remains valid despite commentators' arguments in favor of the additional criteria. I will make two types of argument against each criterion below. First, I will argue that each criterion fails to accurately reflect the law. Second, I will argue in the alternative that even if the additional criteria do correctly represent existing freedom of association jurisprudence, my more minimal approach is superior on logical and practical grounds. 1. Unified message. The notion that a group must disseminate a unified message to qualify as an expressive group stems from both formal and functional considerations. On a formal level, the unified-message view is derived in large part from the Court's language in cases involving organizations alleging that they are being unconstitutionally compelled to admit members with whose views they disagree. The most prominent examples of such cases are Roberts v. United States Jaycees and Board of Directors of Rotary International v. Rotary Club of Duarte. (50) The charitable groups claiming associational protection in both of these cases had originated as all-male organizations, but had gradually admitted women to their ranks over time. In neither case were women granted status in the organization equal to that of men; instead, they were permitted to attend meetings and participate in public outreach activities but were denied the ability to vote on questions of organizational policy. (51) Chapters of the Jaycees and Rotary Club that desired to admit women as full voting members claimed that the organizations' unequal treatment of women violated state antidiscrimination statutes. (52) Both the Jaycees and the Rotary Club responded that their right to freedom of expressive association precluded the government from interfering with their membership structures. (53) The Court rejected this argument, holding that the forced inclusion of women would not unduly burden the organizations' ability to engage in their preferred expressive activity. (54) In so doing, the Court focused on the fact that including women as full members would not be inconsistent with the public positions the organizations had taken, i.e., the messages they had sent through their public statements and activities. (55) At best, the Court reasoned, both organizations had publicly advocated community service and self-improvement, but neither had--verbally or symbolically--taken the position that women were somehow inferior to men or otherwise undeserving of membership. Had the organizations completely excluded women from their ranks, the Court stated, the notion that they possessed an antifemale message would have been more plausible, and they could have credibly argued that the forced inclusion of women would be inconsistent with their public positions. (56) The Court's focus on the Jaycees' and the Rotary Club's public positions has convinced some commentators that in order to be protected by the right to freedom of expressive association, a group claiming to be expressive must disseminate a discernible and unified message. (57) Since Jaycees and Rotary Club held that an organization must show that the governmental action at issue is compelling it to alter the message it is sending to the public, the argument runs, an organization must have a discernible message in the first place in order to prove that its message is being forcibly diluted. The functional argument for a unified-message requirement relies upon the assumption that the sole purpose of the freedom of association doctrine is to prevent the government from interfering with organizations that disseminate unified views on public questions. Ensuring that people who share a given set of opinions can cooperate to publicly express their views improves the chances that others will hear, and perhaps be persuaded by, these views. (58) A group of people who, by contrast, congregate to debate on various political issues and rarely agree on anything is not benefited by a constitutional right that improves its ability to disseminate its message, because it has no message to begin with. Thus, the argument runs, it only makes sense to afford associational rights to groups that possess a unified message. (59) Despite these arguments, I believe that an approach mandating that groups claiming a violation of their right to freedom of expressive association show that they convey a unified message to the public through their expressive activity is both inconsistent with the law and inferior, for practical reasons, to an approach lacking the requirement. Formal arguments. The formal justification for the unified-message criterion is flawed in two respects. First, the Court has made rare but explicit statements rejecting the unified-message approach in cases involving First Amendment doctrines similar to the right to freedom of expressive association. Second, the results in several of the Court's freedom of association decisions demonstrate that the premise of the unified-message view is false--the law does not require an expressive group to show that the governmental action in question is forcing the group to alter its message. As I will demonstrate below, the Court has afforded the protection of the freedom of association doctrine to organizations without reaching the issue of whether the government was compelling those organizations to change their public positions. The Court's explicit contrary statements. To my knowledge, the Court has only made one explicit statement on the issue of whether an organization claiming the right to freedom of expressive association must broadcast a unified message to the public, in its decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston. (60) In that case, a group of private citizens (the "organizers") organized a parade to celebrate St. Patrick's Day in Boston. (61) An association of homosexual Irish-Americans, the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB), requested the organizers' permission to march in the parade, but the organizers refused. (62) GLIB then sued the organizers alleging that their refusal to allow GLIB to march violated a state law prohibiting operators of public accommodations from discriminating on the basis of sexual orientation. (63) GLIB requested an order that it be permitted to join the parade. (64) The organizers claimed that such an order would violate their First Amendment right against being compelled to express a message they did not endorse (often called the right against "forced speech"). (65) This was because observers of the parade would be likely to believe that the parade's organizers shared GLIB's acceptance of and willingness to celebrate homosexuality among Irish-Americans, (66) when in fact the organizers did not share this view. GLIB responded that the parade was merely a "conduit" for the transmission of others' views, since the various groups that made up the parade did not express a common viewpoint on any issue--except, in a trivial sense, appreciation for St. Patrick's Day. (67) Since the parade had no distinct message of its own, it had no right against compelled speech. The Court unanimously rejected this argument, reasoning that making "a narrow, succinctly articulable message ... a condition of constitutional protection" would fail to protect much valuable expression the message of which is indistinct--for example, celebrated works of avant-garde art that are not susceptible to easy interpretation. (68) The fact that a speaker lacks a distinct message, the Court stated, does not deprive the speaker of its right against being compelled to express the messages of others. Although the Court's decision in Hurley strongly suggests the falsity of the unified-message view from a formalist perspective, it is not wholly dispositive of the issue. First, Hurley only deals with the question of whether a person or organization engaged in expressive activity may be compelled to express a message with which it disagrees. Hurley does not establish that no unified message need be shown in any case in which the government's proposed action would deter a group from engaging in collective expressive activity--at most, it only shows that the unified-message requirement need not be fulfilled in cases in which an organization seeks to keep an outsider out of its ranks. For instance, Hurley does not necessarily bear on the associational rights of groups exposed to membership disclosure requirements and attendant private recriminations. (69) Second, although the Court's decision in Hurley was unanimous, signs of division among the Justices on the unified-message question have recently begun to appear. One might think that the Boy Scouts case, described above, (70) was clearly controlled by Hurley--the Boy Scouts claimed a right to exclude a speaker, a homosexual scoutmaster, with whose message it disagreed. However, although the Boy Scouts prevailed on its First Amendment claim, it won the support of only five of the Justices; (71) furthermore, Justice Souter, who authored the Court's opinion in Hurley, (72) did not join the majority. (73) The dissent's primary reason for rejecting the Boy Scouts's claim was that the Boy Scouts did not disseminate a sufficiently antihomosexual public message to render the compelled inclusion of a homosexual scoutmaster burdensome. (74) This reasoning suggests that the dissent believed that a unified-message requirement should be imposed on groups claiming the protection of the freedom of expressive association doctrine. (75) If the dissent did not accept the unified-message criterion, it would have had no reason to analyze the Boy Scouts's message; the Scouts could have prevailed even if the organization (like Jabberwocky) did not express any coherent message at all. The Boy Scouts dissent's rationale thus makes the question of whether a unified-message criterion is a component of expressive association doctrine appear more open than it may have looked just after Hurley. Hence, further discussion of the current state of the law is warranted to show the invalidity of the unified-message criterion. The false unified-message premise. The unified-message view is predicated on the assumption that the Court always requires an organization making a freedom of expressive association claim to show that the government is compelling the organization to alter its public message. (76) However, this assumption is belied by the fact that the Court has often sustained freedom of association challenges to governmental actions that have no direct effect on the message an organization is attempting to disseminate. This point is well illustrated by the Court's decisions involving freedom of expressive association claims by political parties. For example, consider the case of Brown v. Socialist Workers '74 Campaign Committee. (77) In Socialist Workers, the Socialist Workers Party (SWP) of Ohio challenged a state campaign-finance regulation mandating that campaigns disclose the names and addresses of both their campaign contributors and the recipients of their expenditures. (78) The SWP claimed that disclosing this information would result in the harassment of its contributors by private persons, because the SWP and its adherents were not generally well-liked in the state. (79) Thus, complying with the regulation would dissuade potential members and contributors from associating with the SWP and deprive it of its freedom of association. (80) The SWP did not allege that it was being forced to espouse a message it did not support. Despite the absence of a forced change in message, the Court sustained the SWP's challenge. The Court found that the statute imposed a cost on contributors to the SWP that outweighed the public benefit gained by revealing the financial relationships of the SWP's political candidates. (81) Socialist Workers and similar decisions (82) dispel the notion that an organization must show that the government is forcing it to alter its message in order to avail itself of the right to freedom of expressive association. Instead, I suggest, the extent to which an organization is being forced to alter its message is merely one proxy for the deterrent effect the governmental action at issue is having on its associational activities. An organization claiming freedom of association protection can demonstrate the existence of a proscribed deterrent effect with other types of evidence as well; for example, it can show that its members are being dissuaded from associating with it by the threat of private violence, (83) or it can demonstrate that the government has explicitly restricted certain types of group expressive activity--as in a decision of the Supreme Court striking down a municipality's limitation on contributions to referendum campaigns by organized advocacy groups. (84) What ultimately matters to the courts is not the nature of the governmental action taken against the organization in question, but the extent of the cost that action imposes upon association with the organization. (85) Indeed, since the primary concern of the courts is with preventing group expressive activities from being deterred, it would be irrational for the question of whether an entity is an expressive group to turn on whether the government is forcing it to accept members it does not desire (as in Jaycees and Rotary Club) or making it disclose information about its members and affiliates (as in Socialist Workers) if both such governmental actions have the same deterrent effect on association. Functional arguments. There are two key practical problems with the unified-message requirement. First, by failing to afford constitutional protection to groups that engage in expressive activity but do not possess a unified message, the doctrine leaves out a large number of organizations whose activities further the goals of the First Amendment to the same, or arguably an even greater, extent than the organizations that are protected under such an approach. The second problem with the unified-message approach is that it gives a member of an organization that does possess a unified message a perverse incentive to keep his or her views in line with the ones held by the majority of the organization's members. I will discuss both objections to the unified-message requirement below. Organizations that the unified message requirement fails to protect. When discussing the First Amendment goals served by expressive organizations that lack a unified message, it is helpful to divide them into groups whose members solely communicate among themselves in the course of their expressive activities (which I will call "internally expressive groups") and organizations that disseminate information for consumption by the public ("externally expressive groups"). Each type of group serves the purposes of the First Amendment in a distinct fashion. Internally expressive groups. Courts' and commentators' discussions of groups protected by the freedom of association doctrine typically focus on groups that broadcast their views to the public through various means of communication. Writers on freedom of association do not, however, tend to discuss organizations whose members discuss and debate their viewpoints with one another rather than with the general public. The paradigmatic example of such an organization is a (noncompetitive) debating society--a group of people who get together to talk, and frequently disagree, about current political issues. In the rare cases in which courts have heard freedom of association claims by "internally expressive" organizations, they have viewed such claims as implicating the right of intimate association (86)--a doctrine that protects the ability of persons to maintain certain exclusive and highly personal relationships such as that of the nuclear family or the marriage unit. (87) The fact that internally expressive groups are rarely discussed in the expressive association literature is surprising, because such organizations serve important First Amendment goals through their activities. Most importantly for our purposes, the unified-message requirement denies First Amendment protection to internally expressive organizations and thus lessens society's ability to benefit from their activities. Below, I offer two reasons why internally expressive organizations should enjoy the right to freedom of expressive association. First, as noted above, one of the generally acknowledged purposes of the First Amendment is to ensure that the prevailing orthodoxy in all areas of knowledge is constantly challenged. (88) The debating society, the paradigmatic example of an internally expressive group, is well-suited to achieving this end. Internet chat rooms devoted to political discussion and book discussion groups administered by libraries can operate in a similar manner to formal debating societies. Such organizations are particularly well-suited to ensuring that citizens regularly question and challenge dominant belief systems. Debating societies roughly equalize their participants' speaking power, providing an audience for speakers with valid ideas and arguments but meager material resources. Debating societies thus remove what might be called "barriers to entry into the marketplace of ideas." (89) For example, consider an Internet chat room. So long as each participant has a computer and Internet access, each participant may contribute as many or as few "posts" (i.e., miniature essays on the topic to which the chat room is devoted) as he or she desires, subject to generally applicable limitations on excessive contribution. (90) Once a person acquires access to a chat room, the expenditure of additional money or other material resources will not significantly increase the number of people who receive or are persuaded by his or her message. By contrast, attempting to make one's views on, say, an election or referendum heard outside the context of a debating society requires the expenditure of significant amounts of time and money. (91) Thus, a debating society facilitates the dissemination of views that might not otherwise have been heard. As more points of view are circulated, the argument runs, the likelihood that the totality of speech available to the public will include challenges to accepted belief systems will increase. (92) Hence, internally expressive groups serve to improve the quality of public debate and discussion. My second point hits perhaps on a more visceral level, and deals with the irrational consequences of maintaining an asymmetry between the protection provided to internally expressive groups and the constitutional safeguards afforded groups that possess a unified message. I ask the reader to imagine a constitutional regime under which the right to freedom of expressive association does not protect internally expressive groups. Consider two groups existing within this legal regime: the Communist Party (the "Party"), which in our hypothetical produces publications advocating communism and distributes them to the public, and a group of people who get together to discuss politics occasionally and often talk about communism (the "informal group"). Imagine now that a municipality in which both the Party and the informal group operate adopts an ordinance requiring all organizations operating within the city to disclose the names and addresses of their members. The Party could likely bring a freedom of association challenge under Socialist Workers (93) if the government ordered it to produce membership lists pursuant to the ordinance, and trigger the balancing test required by the freedom of association doctrine. However, the informal group could not, because it does not disseminate a unified message (or any message at all) to the public, and it could thus be constitutionally forced to produce membership lists. In my view, this result is irrational and intuitively unacceptable. Even if the reader does not share my perspective, I hope that this example is at least helpful in understanding what is at stake in the debate on the unified-message criterion. Despite the clear capacity of internally expressive groups to serve the First Amendment's purposes and the difficulties inherent in denying expressive groups associational protection, a unified-message requirement would result in the denial of associational protection to at least a significant number of such groups. Internally expressive groups--by definition--do not take public positions, and it is thus impossible for them to demonstrate that they disseminate a unified message to an external audience. Because imposing a unified-message requirement is potentially harmful to internally expressive groups, rejecting the requirement is the functionally superior alternative. Externally expressive groups. One might object that externally expressive groups that lack a unified message are distinct from their internally expressive counterparts in two important respects. First, the members of an externally expressive group communicate with persons outside of their ranks in the course of the group's expressive activities, whereas members of an internally expressive group (e.g., a book discussion group or an Internet chat room) do not collectively communicate with the general public. Second, the mere fact that externally expressive groups exist and operate does not guarantee that anyone will engage in deliberation on issues of public importance. For example, it is not guaranteed that a commercial newspaper will release articles or editorials that inform readers regarding such matters. (94) Thus, one might argue that the manner in which an externally expressive organization serves the purposes of the First Amendment is less clear than the fashion in which internally expressive groups do so, and thus they should not receive the protection of the freedom of association doctrine even if internally expressive groups are entitled to it. However, a convincing rationale exists for applying the freedom of association doctrine to externally expressive organizations that lack a unified message. I articulate two reasons for this claim below. First, even if externally expressive groups are not guaranteed to provoke challenges to political orthodoxy by their operation, they can serve the First Amendment goals of, among others, informing voters on issues of likely importance to them when choosing among political candidates and exposing governmental corruption and mismanagement. (95) For example, even if during an election a commercial newspaper does not cause readers to consider policy proposals beyond those put forth by the two major-party candidates, it can at least expose the backgrounds and affiliations of those candidates and thus aid prospective voters in making an informed choice. There is no reason to believe that a group lacking a unified message would be any less capable of performing these functions than a group possessing one. Indeed, the opposite might be true; one could argue that the members of a group without a shared message will be more inclined to objectively report the evidence they discover in the course of their research rather than shading the truth to support a single message. (96) This argument parallels the concerns of some commentators that ownership of media entities by large corporations will cause the views espoused by those entities to become biased in favor of serving their corporate owners' interests. (97) Since the material livelihood of a reporter for a publication lacking a unified message does not depend on portraying the facts in a light favorable to the publication's overall viewpoint, that reporter is more likely to be objective in his or her reporting. Second, the argument from intuition I made above with regard to internally expressive groups also applies in the context of externally expressive organizations. This point can be illustrated by a variation on the hypothetical I posed above. Imagine that a municipality enacts an ordinance requiring that all campaign-related literature distributed within its borders bear the name and address of both the persons responsible for its content and the persons responsible for printing it. Further, any person who violates the ordinance is subject to a fine of $100. Two organizations bring freedom of association claims: the Communist Party (the "Party") and a publishing company that often prints brochures for political organizations (the "publisher"). The publisher does not express any public views of its own, and it prints any brochures its clients request; thus, although the publisher distributes information to the public, it does not disseminate a unified message. The Party purchases the services of the publisher, instructing it to print a brochure advocating the election of the Communist Party candidate in the upcoming municipal election. The brochure does not bear the names and addresses of either the Party personnel who composed its text or the employees of the publisher responsible for printing the brochure. Consequently, the municipality brings charges against the Party and the publisher and demands that they pay the fine. Both entities claim that, given local animus toward the party, it would have endangered their members and employees to reveal their names and addresses on the brochures. This, in turn, would have deterred the members and employees from continuing to associate with the Party and the publisher, respectively. They challenge the application of the ordinance to their organizations, arguing that it violates their right to freedom of expressive association. (98) As in the case of the informal discussion group above, the Communist Party would likely receive the protection of the balancing test, but the publisher would not. Though the publisher's role in providing information to the public is as significant as that of the Party, the unified-message approach demands that the publisher alone suffer the penalty. This result is just as irrational as the result in the "informal discussion group" case described above. (99) As we have seen, denying the protection of the right to freedom of expressive association to internally and externally expressive groups that lack a unified message does a disservice to the goals the First Amendment--at least, in the view of the courts--was intended to achieve. However, the potential deleterious effects of a unified-message requirement reach further. As I suggest below, a unified-message requirement would negatively impact organizations that do disseminate a unified message to the public by giving such organizations an incentive to stifle internal discussion and debate regarding the public positions they should take. Organizations that possess a unified message. A unified-message requirement gives members of organizations that disseminate a unified message an incentive to avoid challenging the organizations' official views, and gives the organizations an incentive to stifle the views of dissenting members. Under a constitutional regime adopting a unified-message requirement, promoting dissent and debate within an expressive group might create an ideological schism and endanger the unity of the group's message, thereby depriving the group of the protection of the right to freedom of expressive association. (100) Since promoting dissent from established orthodoxy is a key First Amendment value, the unified-message test would achieve a result antithetical to the Amendment's goals. To illustrate this point, consider two hypothetical variations on the facts of Boy Scouts. First, imagine that ten percent of the Boy Scouts's nationwide membership had made known their support for permitting homosexuals to be scoutmasters and had openly dissented from the exclusion of the plaintiff. A court adhering to a unified-message requirement would likely have considered this fact proof that the Scouts lacked a unified message. This reasoning would resemble the analysis of the Court in its dicta in Jaycees and Rotary. As noted above, the Court implied that if the Jaycees had denied membership to women entirely, their claim that they were engaged in disseminating an antifemale message would have been more plausible, because the full denial of membership to women would have been sufficient to symbolically convey a message of antifemale animus to the public. (101) Similarly, the Court might argue, the fact that there is dissension in the ranks of the Boy Scouts on the homosexual scoutmaster issue detracts from the Scouts's ability to symbolically demonstrate sufficient antigay sentiments to satisfy the unified-message test. Surely, in order to constitute a unified message, a public position taken by the Scouts must be agreed upon by most or all of the Scoutss' members. (102) Thus, the Court in this hypothetical would have denied the Scouts the right to freedom of expressive association, and hence held that it need not balance the government's interest in ensuring that homosexuals acquire access to membership in clubs and nonprofit organizations against the Scouts's interest in dictating the characteristics of its members. Second, imagine instead that the Scouts have presented a publicly unified front against allowing homosexuals to be scoutmasters: No members have written editorials or held protests condemning the exclusionary policy or otherwise made known their disagreement. Now, imagine that a Scouts member holds a minority view in favor of homosexual inclusion. In light of the possibility that the hypothetical situation described above might come to pass, the managing members of the organization would have the incentive to expel the dissenter from the Scouts to prevent him from disrupting the unity of the group's message and thus subjecting it to the state law against antihomosexual discrimination. The minority member would have no state antidiscrimination claim against the Boy Scouts for expelling him, because the Boy Scouts expelled him based on the content of his speech rather than his possession of some protected characteristic. The minority member might thus abandon any inclination he might otherwise have had--under a constitutional regime lacking a unified-message requirement--to attempt to reform the antihomosexual policy of the organization for fear of expulsion. (103) Such a result would lead to ideological stagnation within expressive groups, since holders of minority views would become reluctant to speak out on aspects of their groups' beliefs or policies that they found objectionable. (104) The incentive to stifle intraorganizational dissent created by the unified-message rule is another reason why the approach would achieve a result contrary to the First Amendment's goal of promoting the clash of opposing views. Hence, the unified-message approach fails to accurately represent existing precedent and does not serve the underlying purposes of the First Amendment. 2. Commercial vs. noncommercial. Many commentators suggest that an organization should be required to establish that it is predominantly noncommercial to successfully claim the protection of the right to freedom of expressive association. Advocates of this approach label a group that engages in a sufficiently low level of commercial activity an "expressive" group, which qualifies it for associational protection, and describe a group that does not pass this test as "commercial" in nature. (105) Supporters of the "expressive/commercial group" distinction justify it on both formal and functional grounds. On a formal level, supporters of the expressive/commercial dichotomy admit that a majority of the Court has never explicitly embraced this distinction. Indeed, the distinction became popular among legal commentators following its articulation in the concurring opinion of Justice O'Connor in Roberts v. United States Jaycees--an opinion in which no other Justice joined. (106) However, one might plausibly infer the distinction's validity from an examination of the results--if not the reasoning--in many of the Court's pre-Jaycees decisions. As noted above, Justice O'Connor considers manufacturing goods, buying and selling goods and services, and recruiting and training employees to be activities of a commercial nature. (107) As an empirical matter, the Court has almost always rejected freedom of association claims brought by organizations that engage in significant amounts of these activities, (108) whereas organizations that do not have fared better. Although the Jaycees and the Rotary Club are nonprofit organizations, the decisions involving those groups are not to the contrary. While most of the commercial groups whose freedom of association claims have been rejected by the Court have been for-profit organizations, nonprofit organizations are certainly capable of taking part in the types of activity that supporters of the expressive/commercial distinction label commercial. (109) On a functional level, the argument typically made for the expressive/commercial distinction is that it is important to ensure that all members of the public have access to goods, services, and employment--items a commercial entity (as per the above definition of an organization that engages in activities defined as commercial) usually possesses the ability to provide. (110) It is not as important to ensure that the public gains access to the intangible benefits conferred by membership in or affiliation with a noncommercial organization; while people need (at least some amount of some types of) goods, services, and employment to survive and live meaningful lives, the argument runs, they do not require (for instance) membership in the Boy Scouts (111) or the ability to march in the St. Patrick's Day Parade (112) to do so. Some proponents of the expressive/commercial distinction advance the additional argument that the psychological or "dignitary" harm of being refused a good or service is worse than the harm inflicted by being refused membership in a noncommercial organization. (113) Hence, it is more important that the state retain regulatory authority over commercial organizations than noncommercial ones. As in the case of the unified-message criterion above, both the formal and functional arguments typically advanced in favor of the expressive/commercial distinction do not support its adoption. I will address each in turn below. Formal arguments. Two aspects of existing case law suggest that commercial organizations suffering a burden on their freedom to associate are not without constitutional protection. First, the willingness of the Court to grant the protection of the freedom of association doctrine to labor unions indicates that the Court is indeed willing to extend the doctrine to commercial entities that also engage in expressive activity. Second, the Court's language in several of its opinions can plausibly be read as rejecting the expressive/commercial distinction wholesale. The Court's willingness to afford the right of association to labor unions suggests that the expressive/commercial distinction is less entrenched in the Court's jurisprudence than is commonly thought. The unions appearing in the Court's freedom of association decisions have claimed associational rights to engage in collective bargaining, to employ lawyers to represent their members, (114) and to recruit additional personnel. (115) Moreover, the unions' challenges against the governmental actions at issue succeeded. (116) If the expressive/commercial distinction accurately represents the law, these unions must have been "expressive" organizations; for if they were "commercial" in nature, they could not have prevailed on their freedom of association claims. However, labor unions are in fact "commercial" organizations, as that term is employed by advocates of the expressive/commercial distinction. Unions' activities include negotiating collective bargaining agreements (thus essentially negotiating the price at which their members will sell their labor), (117) advocating governmental action favorable to their cause, (118) and recruiting additional employees into their ranks. (119) Obviously, unions also employ personnel to direct their operations and perform clerical tasks. Even those who support the expressive/commercial dichotomy admit that negotiating contracts of sale, recruiting members, and hiring employees are all commercial activities. Justice O'Connor, who initially advanced the expressive/commercial distinction, (120) defines all of these activities as "commercial" at various points in her concurrence in Jaycees. (121) Moreover, labor unions do not generally perform volunteer public service work on the level of the Jaycees and the Rotary Club; if we assume (as we reasonably might) that volunteer work is not commercial activity by the terms of the expressive/commercial distinction's proponents, we must conclude that an even greater portion of labor unions' activities are commercial than those of the Jaycees or the Rotary Club. Hence, the Court's labor union freedom of association decisions create significant difficulties for the thesis that the Court has always rejected the freedom of association claims of substantially commercial organizations. The union cases demonstrate that the Court is not wholly unwilling to grant the protection of the freedom of association doctrine to organizations engaged in what advocates of the expressive/commercial dichotomy themselves deem commercial activities. Second, even assuming that labor unions are somehow "expressive" by the terms of the expressive/commercial distinction, the Court has explicitly rejected the distinction--again, in the cases applying the freedom of association doctrine to labor unions. For instance, in Thomas v. Collins, (122) the plaintiff, a union member who wished to solicit employees to join his organization, brought a freedom of association challenge to a Texas statute that required union organizers to register their names and addresses with a state agency before performing recruitment activities in the state. (123) The state argued that since the union was soliciting members for the purpose of collective bargaining activity (which, it asserted, was essentially commercial in nature), it was not entitled to associational protection. (124) The Court rejected this argument, stating that "[t]he idea is not sound ... that the First Amendment's safeguards are wholly inapplicable to business or economic activity." (125) It was unhelpful to the expressive association inquiry, in the Court's view, to "urge, as Texas does, that an organization for which the rights of free speech and free assembly are claimed is one `engaged in business activities' or that the individual who leads it in exercising these rights receives compensation for doing so." (126) The Court's repudiation of the expressive/commercial distinction in Collins was thus quite explicit. Hence, both the nature of the organizations that the Court has protected with the freedom of association doctrine and the language the Court has used suggest that it is unwilling to deny commercial entities the right to freedom of expressive association. Functional arguments. The expressive activity engaged in by commercial organizations is not inherently less socially beneficial than that in which noncommercial organizations engage. It is true that the Court has ruled that "commercial speech," defined as speech that does "`no more than propose a commercial transaction,'" (127) is entitled to less protection under the First Amendment than other forms of constitutionally protected expression. (128) However, commercial organizations often produce noncommercial speech; for example, a commercial newspaper obviously does much more with its expressive activities than propose commercial transactions, although it certainly does advertise its publication. Thus, the functional justification for denying commercial organizations the right to freedom of expressive association cannot be based on the lower value of their speech. Rather, in order to justify the expressive/commercial distinction on functional grounds, its proponents must show that the social cost of affording commercial organizations associational rights exceeds the cost of affording the same rights to noncommercial organizations. Hence, as noted above, the main functional argument of defenders of the expressive/commercial distinction focuses on the need to maintain an equitable distribution of goods and services in society. In essence, the argument in favor of granting less freedom of association protection to commercial organizations than to their noncommercial counterparts is that goods, services, and employment are needed for basic subsistence whereas the less tangible benefits that accrue to members or affiliates of an expressive organization are not. (129) Even if this argument is correct, however, it only justifies denying associational rights to "commercial" entities where (1) they are actually engaged in the provision of goods and services necessary for basic subsistence and (2) they are attempting to discriminate in the provision of goods, services and/or membership. I justify the imposition of each of these conditions below. The necessity requirement. Commentators often justify the denial of the right of freedom of association to organizations engaged in commercial activity on the ground that the goods and services that commercial organizations typically provide are essential for subsistence. (130) Though it is not often pointed out, this rationale is significantly underinclusive. It does not justify denying the right to freedom of expressive association to organizations that are not engaged in the provision of goods and services one needs to survive. (131) For example, it may justify denying expressive associational protection to grocery stores, but it does not justify denying the right to jewelry stores, (132) because at least some of the goods provided by the former are needed for human survival while those provided by the latter are clearly not. It certainly does not justify denying the right to freedom of expressive association to the Jaycees, (133) who at most provided members the opportunity to improve their business skills and contacts and did not offer goods necessary to human survival. One might respond, as some commentators have done, that even a denial of goods that are not essential to subsistence results in a psychological or "dignitary" harm to the rejected party. (134) Even if this is correct, it is not clear to me that the denial of membership in a nonprofit or social association is any less psychologically harmful than the denial of commercial goods and services. It is not intuitively obvious, for example, that the denial of admission to the Boy Scouts on the basis of one's homosexuality is less psychologically harmful than being denied service in a restaurant on those grounds. (135) If both exclusions inflict roughly equal emotional harm, the argument that dignitary harms justify the denial of associational rights proves too much for its supporters, because it justifies a holding that any organization--commercial or otherwise--that excludes outsiders in a manner resulting in psychological harm has no First Amendment right to engage in collective expressive activity. In order to avoid this consequence, one must take the position that only the harms resulting from the denial of truly necessary goods and services are sufficient to justify a denial of the right to freedom of expressive association. The discrimination requirement. It may be that the denial of expressive associational rights to an organization is justified where that organization provides necessary goods and services and discriminates against certain classes of persons in the provision of those items. However, the justification is not as persuasive with respect to other paradigm freedom of association cases--for instance, situations in which Socialist Workers-type disclosure requirements cause people to refrain from associating with an organization for the purpose of engaging in expressive activity, (136) or in which a government actor denies an organization the ability to engage in expressive association with third parties. (137) The goods-and-services and dignitary-harm arguments discussed above (138) do not justify denying commercial actors the right to freedom of expressive association in these cases, because neither disclosure requirements of the Socialist Workers variety nor direct prohibitions on congregating to engage in expressive activity protect the public from being denied goods and services or suffering psychological harm. Thus, I will grant--for the purposes of this Note--the validity of the goods-and-services justification with respect to entities requesting the right to discriminate against persons wishing to transact with them. However, in cases in which the goods provided by the organization at issue are not necessary for subsistence and in other paradigm association cases, (139) commercial organizations should not be barred at the threshold from availing themselves of the right to freedom of expressive association. B. Deterrent Effect Assuming the reader accepts the arguments laid out above, he or she probably retains a nagging concern regarding my formulation of the freedom of association doctrine. The probable concern is this: Can an "expressive group" as per my definition compel the government to provide evidence of the necessity of any action that burdens the operations of the group, regardless of the relationship between the government's proposed act and the type of expression in which the group engages? For example, one might worry that the proposed formulation would constitutionally protect a newspaper's decision to discriminate based on race in its hiring policies solely because it engaged in the expressive activities of writing and publishing. An organization claiming such a right should not be able to force the government to demonstrate the potential social benefits of the action it proposes to take. However, as we will see, the requirement that the governmental action at issue deter the members of the expressive group from congregating to engage in expressive activity imposes a crucial limit on my formulation of the freedom of association doctrine and serves to assuage that anxiety. A governmental act "deters" a person from engaging in an activity when, as a result of that action, the person engages in the activity less often than he did before. (140) However, the mere fact that the government makes taking a certain action more costly for a private party--thus requiring that party to expend more time, resources, and effort than it otherwise would have expended--does not necessarily mean that the government's action will cause the private party to engage in the activity in question less often. If the cost of doing other similar activities increases to the same extent, there is no reason to think a private party will be less likely to engage in expressive activity than it otherwise would have been. Imposing an increased cost on the performance of an expressive activity thus does not deter people from engaging in that activity if an equivalent cost is also imposed on alternate activities. Although it does not explicitly discuss the doctrine of expressive association, the Supreme Court's decision in Arcara v. Cloud Books, Inc. (141) provides a good illustration of the recognition of the above principle in the law. (142) In that case, a municipality closed an adult bookstore because prostitution was taking place in it. (143) The bookstore claimed that the closure of its establishment made it less able to sell its books, and thus that the closure unconstitutionally burdened the bookstore's ability to engage in the expressive activity of bookselling. (144) The Court unanimously rejected this argument. Even assuming that selling books is a constitutionally protected expressive activity, the Court reasoned, the municipality's closure of the store did not specifically punish the sale of books; rather, it punished prostitution, and thus its harmful effect on the bookstore was merely incidental. (145) It thus held that the First Amendment did not require that the Court subject the closure of the bookstore to any judicial scrutiny, i.e., to balance the social cost of shutting down the bookstore against that of permitting prostitution to occur in it. (146) Although the Court did not extensively elaborate on the rationale for its decision, the decision signifies the Court's recognition that a governmental act that punishes expressive activity but also punishes a large number of other activities to the same extent cannot properly be said to have a "deterrent effect" on expressive activity. (147) To demonstrate this point, let me put forth a hypothetical that simplifies but captures the essence of the Cloud Books decision. Assume that I want to run a business of some kind and permit prostitution to occur on the premises of my establishment. I will make $55,000 per year if I operate a bookstore, and $50,000 per year if I open a nightclub. About $10,000 of that annual income, however, comes in because I allow prostitution to occur on the premises of my business. Now, imagine that an ordinance is passed making it a crime to knowingly permit prostitution to occur on one's property, and I am forced to stop allowing it. I thus lose $10,000 regardless of which type of business I operate. Yet, importantly, the type of business I prefer to run will not change. If I preferred to run the bookstore because of the higher income I could earn by doing so prior to the adoption of the ordinance, I will also prefer to do so afterward. If the numbers in my example were reversed and I were capable of making more money annually by operating the nightclub, there is no reason to think that the change in the law would cause me to switch to the bookstore business. Thus, I have not been deterred from engaging in expressive activity (e.g., running the bookstore) by the passage of the "antiprostitute harboring" ordinance; I am not less inclined to engage in expressive activity than I was prior to the ordinance's enactment. The situation in my Cloud Books-related hypothetical would clearly be different, however, if the closure had been performed pursuant to an ordinance that specifically prohibited allowing prostitution to occur in bookstores. (148) Under this legal regime, if I chose to operate a bookstore, my annual income would be reduced to $45,000, whereas I would make $50,000 per year if I operated the nightclub. This is because I can still permit prostitution to occur in my establishment if I open a nightclub, and thus I get $10,000 in income that I would not have obtained had I run a bookstore instead. In this type of situation, a judicial balancing test would be appropriate--assuming, again, that the sale of books constitutes expressive activity. (149) In this variation on the hypothetical, I am made worse off if I engage in expressive activity than if I do not, and am thus deterred from performing it. How does the Cloud Books doctrine bear on the "racially discriminatory newspaper" example I discussed above? Under my preferred constitutional regime, the newspaper's challenge would be rejected, and no judicial scrutiny of the antidiscrimination statute (and hence, no balancing analysis) would be warranted. This is because the antidiscrimination statute in our example does not specifically target expressive activities of the kind in which the newspaper engages. Thus, the newspaper is analogous to the bookstore being subjected to an antiprostitution ordinance that does not specifically target the toleration of prostitution by businesses engaged in selling books. The same cost would be imposed on the owners of the newspaper if they had decided to run a nonexpressive business and adopted a discriminatory hiring policy, and thus it cannot properly be said that their expressive activities are being "deterred." Had the law prohibited racial discrimination by newspapers only, however, the potential deterrent effect on expressive activity would have been greater, and a balancing approach would have been appropriate. Although it is true that under my formulation of the freedom of association doctrine, a group need only engage in some type of expressive activity in order to be an expressive group, that group must be faced with a governmental action that threatens to deter it from engaging in group expressive activity for it to be entitled to associational protection. The Cloud Books principle hence effectively limits the application of the freedom of association doctrine to a discrete set of situations. In Part II, I will focus on certain cases in which a press entity has come before a court claiming First Amendment protection from some governmental action. The decisions I discuss are noteworthy because, on the facts of the cases, the press entities involved were capable of fulfilling both the first and second requirements of the test I enunciated above; yet the courts before which they brought their claims refused to engage in a balancing analysis. II. THE PRESS AND CONTENT-NEUTRAL GOVERNMENTAL ACTION As shown in Part I, the Supreme Court and the lower courts have typically applied the balancing test associated with the right to freedom of expressive association where an expressive group has claimed that a content-neutral governmental action is likely to cause its members to associate with it less frequently. It is therefore surprising that courts have historically refused to apply the balancing test when faced with similar claims by press entities. Instead, courts have almost uniformly dismissed such claims on the ground that a press entity is not entitled to a special exemption from content-neutral governmental actions. It is important to note that the balancing test associated with the freedom of association doctrine is not always appropriate when a governmental action dissuades the members of a press entity from engaging in collective expressive activity. Some cases in which courts have refused to reach the balancing inquiry involved press entities that failed to show that the governmental actions taken against them specifically deterred the group expressive activities they were performing. My suggestion, however, is that the courts have often incorrectly refused to engage in the balancing test when adjudicating First Amendment claims by press entities against content-neutral governmental actions that do have a deterrent effect on group expressive activities. This Part will provide examples of cases in which courts ought to have applied the freedom of association balancing test to the claims of the press entities at issue. Since, as noted above, it is important for reasons of clarity to contrast the cases in which the balancing test should have been applied with the cases in which the courts were correct not to apply it, Part II.A will describe decisions in which the courts rightly decided that the freedom of association balancing test was inappropriate, and Part II.B will deal with cases in which the balancing test should have been applied. A. Cases in Which a Balancing Test Was Inappropriate As noted above, I do not disagree with every decision in which a court declined to balance the public interest in preventing the deterrence of a press entity's group expressive activity against the interest in permitting the government to take its preferred action. In some cases, the press entities concerned have failed to meet the requirements of the test I articulated above that must be fulfilled to trigger the balancing inquiry. (150) This typically results from their failure to meet the second criterion of the test--the requirement that the expressive activity in which a group seeks to engage must be deterred by a governmental action. (151) To illuminate the distinction between the situations in which I would advocate the use of the balancing test and those in which I would not, I will provide examples below of cases involving press entities in which courts rightly found the balancing inquiry inappropriate. The cases providing the least ambiguous examples of situations in which press entities making claims against content-neutral governmental actions have failed to meet the deterrence requirement come from the mid-twentieth century. In these cases, the government alleged that certain press entities failed to comply with regulations applicable to business activities. Examples include Oklahoma Press Publishing Co. v. Walling, (152) in which the Court rejected the claim of a newspaper that ordering it to pay its employees at least the federal minimum wage abridged its freedom of association; Lorain Journal Co. v. United States, (153) in which the Court denied that subjecting a newspaper company to the restrictions imposed by the Sherman Act on monopolization of an industry would deprive it of the freedom of the press; and, more recently, Cohen v. Cowles Media Co., (154) in which the Court rejected a newspaper's claim that it could not be held liable for damages resulting from its breach of a promise to a source that his identity would be kept confidential. In these cases, unlike the decisions described below, (155) the statutes at issue did not condition penalties upon the engagement in an expressive activity. Thus, as in the Cloud Books case above, (156) even if the owners of the press entities at issue had decided to abandon the newspaper business and go into, say, the restaurant industry, they would not have been exempted from prohibitions on paying their employees below the minimum wage, monopolizing the industry in which they operated, or breaching their contracts. (157) Hence, the courts that decided these cases correctly declined to balance the interests at hand. However, as I will demonstrate below, the courts have on several occasions refused to apply the balancing test to situations in which a deterrent effect was demonstrable. B. Cases in Which a Balancing Test Would Have Been Appropriate In this Part, I will provide examples of cases in which the Supreme Court and the lower courts have heard and rejected First Amendment claims by press entities against content-neutral governmental actions. In all of these cases, the deciding court refused to balance the interests of the government and the press entity bringing the claim. This was not the correct approach, because the press entities at issue were expressive groups and the governmental action deterred the groups' expressive activities. As noted above, a "governmental action" under my framework can mean either the passage of a written statute or regulation by a legislature or administrative agency with rulemaking powers, or an action taken by an executive actor under the authority of a statute. Both types of acts can have a deterrent effect on collective expressive activity. However, one must employ a different method of proof to show a deterrent effect for each type of governmental act. It is not difficult to determine whether a statute penalizes a certain type of collective expressive activity. For example, if the language of the statute specifically prohibits conducting interviews with certain persons (158) or imposes an additional tax on newspapers to which other industries are not subject, (159) it is clear that the statute makes entities that collectively engage in a given type of expressive activity worse off than those that do not. The case of executive action, however, creates greater difficulty. Executive agents need not always provide explicit reasons for the actions they take. A prosecutor, for instance, is not required by law to publicly justify his choice of one law violator over another as a target of prosecution. (160) As a result, a prosecutor may target an entity based on its engagement in collective expressive activity--as the state of Alabama most likely did in the NAACP v. Alabama case described above (161) and observers may be none the wiser. (162) How, then, are we to tell whether an executive action has the potential to deter collective expressive activity? I suggest that the proper test asks whether the executive action could not have been taken but for the expressive act of the entity against which the executive agent is acting--a test analogous to that utilized by the Court in determining whether communications between criminal defendants and their attorneys are protected from disclosure under the Fifth Amendment. (163) If the governmental action could not have been taken had the expressive activity not occurred, the executive actor could properly be said to be deterring the entity from engaging in expressive activity as per the criteria I put forth above. (164) For example, suppose that a newspaper reporter conducts an interview with a source regarding a crime the source witnessed, and agrees with the source that the source's name and other information about him will remain confidential. A prosecutor then obtains a subpoena ordering the newspaper to turn over information about the source in connection with a criminal investigation. (165) Since the reporter would not have known the source's name and any other information about him had he not conducted the interview, the subpoena would not have been issued but for the interview's occurrence. Hence, the subpoena makes the reporter and the source worse off than they would have been had they not engaged in collective expressive activity. Although this fact would not immediately result in a finding of unconstitutionality under my formulation of the freedom of association doctrine, it would trigger the application of the balancing test described above. (166) Since the methods of proving that a governmental action deters collective expressive activity differ based on the type of governmental action at issue, it will help me to illustrate the implications of my formulation of the freedom of association doctrine to provide both examples in which press entities have brought First Amendment challenges to legislative and regulatory provisions and examples in which they have attacked the constitutionality of executive actions. 1. Statutory/regulatory prohibitions on group expressive activity. When the Court has heard cases in which press entities have challenged statutory and regulatory provisions on the ground that they deterred those entities from associating for expressive purposes, the Court has rejected these claims even where the press entities were capable of making a showing of deterrence under the test I articulated above. (167) The 1974 case of Pell v. Procunier (168) effectively illustrates this point. In Pell, a state prison regulation prohibited the press from conducting interviews with prison inmates. (169) Additional regulations barred any person--whether or not he or she was affiliated with the press--from interviewing prisoners. (170) The plaintiff reporters sued, arguing that the First Amendment conferred a right upon them to hold interviews with inmates. (171) The Court rejected this claim using reasoning closely resembling that which it employed in the economic regulation cases described above. (172) The mere fact that the reporters were members of the press, the Court argued, did not entitle them to exemptions from "generally applicable" legal rules. The set of regulations prohibiting interviews was generally applicable, i.e., not specifically targeted at the press, because members of the public unaffiliated with the press were also barred from conducting interviews with inmates. (173) Thus, the Court declined to consider the extent of the harm to the journalists resulting from being unable to disseminate the information with which the inmates could provide them; for the Court, the fact that the press was not subject to harsher restrictions than the general public was wholly dispositive of the claim. (174) At first glance, the facts of the Pell case may seem perfectly analogous to those of the economic regulation cases: In both Pell and the Court's earlier decisions, media entities sought an exemption from generally applicable laws. However, Pell and the older cases are dissimilar in a key respect. Since it specifically prohibited interviews, the regulation at issue in Pell targeted attempts by would-be interviewers and prison inmates to engage in group expressive activity. The expressive group at issue in the case was the congregation of the reporters and the prisoners that would have existed had the interview been permitted, since a press interview essentially constitutes a collaboration for the purpose of disseminating the information obtained from the interviewee to the newspaper's audience. The antiinterview regulation was unlike, for instance, the antitrust statutes and generally applicable tax laws, (175) because those laws equally burdened both organizations that were engaged in expressive activity and organizations that were not. For instance, press entities would obviously be subject to suit for violations of the Sherman Act if they monopolized the newspaper industry whether or not they were engaged in interviewing sources or conducting other conventional newspaper activities. (176) The reporters could make a plausible argument that the regulation was deterring them from engaging in group expressive activity with the prisoners--such a claim would not run afoul of the Cloud Books doctrine articulated above. (177) Hence, according to the formulation of the right to freedom of expressive association set out in Part I, the Court should have balanced the reporters' interest in conducting the interviews against the government's interest in barring them. The Court, however, did not consider these questions and declined to engage in the balancing test. In so doing, it erroneously adopted the approach of the economic-regulation cases discussed above in which no deterrent effect was present. 2. Discretionary governmental actions triggered by group expressive activity. In cases in which press entities have brought First Amendment claims against content-neutral governmental actions by agents of the executive branch, the courts have taken an approach similar to that of the Supreme Court in Pell. To illustrate this point, I will provide the reader with a detailed discussion of a case that was particularly explicit in its rejection of the notion that the Constitution affords press entities protection against governmental actions that deter persons from associating with them. In Reporters' Committee for Freedom of the Press v. AT&T, (178) the United States Court of Appeals for the District of Columbia Circuit heard a constitutional challenge by reporters to the government's practice of subpoenaing the phone records of journalists in order to determine the identities of confidential sources whom the journalists had interviewed. (179) The government presumably wanted this information because these persons were suspected of or witnesses to criminal activity. The journalists argued that if the government was allowed to persist in this practice, sources that preferred to keep their identities confidential would cease to speak to the press. (180) Thus, the reporters specifically argued the case on freedom of association grounds, analogizing the potential "chilling effect" of the phone-record subpoenas to the effect of the membership disclosure requirements in several of the cases discussed above. (181) In rejecting the journalists' argument, the court acknowledged that the Supreme Court had "found in a number of cases," citing among others NAACP v. Alabama, (182) "that constitutional violations may arise from the deterrent, or `chilling', effect of governmental action that falls short of a direct prohibition against the exercise of First Amendment rights." (183) However, the court explained, the deterrent effect on the willingness of reporters and sources to associate in this case did not "arise from the present or future exercise, or threatened exercise, of coercive power," and thus the case was distinguishable from the leading decisions in the Supreme Court's freedom of association jurisprudence. (184) The subpoenas in Reporters' Committee would have constituted exercises of coercive power, in the court's opinion, if they had amounted to "restrictions, prior restraint[s], or sanctions on journalists' information-gathering." (185) Since they did not, the court argued, this case was indistinguishable from earlier twentieth-century cases in which press entities had claimed constitutionally mandated exemptions from generally applicable economic regulations. (186) The court did not elaborate on the meanings it ascribed to the terms "restriction" and "sanction on information gathering" in this context. If by a "sanction on information gathering" the court meant a governmental action taken with the purpose of harming the press (i.e., a content-based action), the statement that such a sanction was required to trigger constitutional protections would contradict the court's earlier language suggesting that even a governmental action not taken with the goal of harming the press (i.e., a content-neutral action) could violate the First Amendment. (187) It is more plausible to assume that the court meant that the reporters' freedom of association claim failed to surmount the obstacle posed by the Cloud Books deterrence doctrine discussed above (188)--after all, the argument might run, the subpoena power enables the government to obtain records from any person, regardless of whether he or she has engaged in any form of expressive activity. However, this argument misses a crucial difference between the facts of the Reporters' Committee case and the facts of cases in which press entities' claims foundered on the Cloud Books doctrine. In Reporters' Committee, the information the government was attempting to obtain by subpoenaing the journalists' telephone records would not have existed but for the interviews the journalists had conducted; the governmental action causing the alleged deterrent effect would not have occurred in the first place had the reporters not engaged in expressive activity. (189) In the economic regulation decisions, (190) the statutes at issue did not make organizations engaged in expressive activity uniquely subject to penalties. Unlike the reporters in Reporters' Committee, the fact that the newspaper companies in the economic regulation cases engaged in expressive activities did not prompt the government to act against them. If the "coercive/noncoercive government act" distinction drawn by the Reporters' Committee court does not support the result in that case, the decision cannot be squared with the freedom of association doctrine articulated above. Clearly, the press entities in Reporters' Committee were "expressive groups" as per the test outlined in Part I (191)--they engaged in multiple expressive activities, including writing, publishing and interviewing news sources. Furthermore, they offered evidence that they were at risk of losing sources because of the government's inspection of their telephone records, thus meeting the "deterrence" criterion of the test. Perhaps, as in the Branzburg case, (192) the government would have successfully demonstrated that its need for the evidence outweighed that of the public for the sources' information, but the reporters should at least have been given the chance to avail themselves of the balancing test commonly associated with the freedom of association doctrine. The District of Columbia Circuit's unwillingness to take this approach is symptomatic of the courts' refusal to treat the press like other entities traditionally protected by the right to freedom of expressive association. (193) What explains this apparent discrepancy between the courts' treatment of press entities and other expressive groups in the freedom of association context? Given the courts' appreciation of press entities' ability to serve the goals of the First Amendment, (194) it is unlikely that the discrepancy stems from a distaste for the media. More likely, in light of the many occasions on which press entities have made First Amendment claims against content-neutral governmental actions and failed to show the existence of a deterrent effect on expressive activity, the courts have begun to reflexively analogize all First Amendment claims by the press to the economic regulation cases (195) without perceiving the key differences present in certain instances. Whatever the explanation, my purpose in this Part has been to point out the disparity between the courts' treatment of the First Amendment claims of press entities and those of nonpress entities in seemingly indistinguishable factual situations. III. THE PRESS AND THE PARADIGM CASES As noted above, the right to freedom of expressive association is typically invoked in three factual contexts: First, where a governmental actor requires an expressive group to allow a person with whom it does not wish to associate to become a member; (196) second, where the government mandates that an expressive group disclose the identities of its members or affiliates; (197) and third, where the government imposes an explicit prohibition or penalty on a given type of collective expressive activity. (198) The cases described in Part II mostly involved situations of the third variety; the prohibition on inmate interviews in Pell (199) and the subpoenas of press entities' telephone records in Reporters' Committee (200) were both penalties on some form of expressive activity by the press. The press is not typically faced with governmental actions of the first and second varieties described above. One might thus doubt that such situations will ever arise, and question the need to discuss the manner in which the freedom of expressive association doctrine might be applied in such circumstances. However, as I will illustrate below, scenarios at least analogous to the first and second situations described above have indeed arisen in the courts. A. The Discrimination Context The first paradigm freedom of association case, in which an expressive organization is forced to accept an unwanted member, was exemplified in the press context by the Supreme Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo. (201) The decision concerned a Florida statute mandating that newspapers that published material critical of political candidates afford those candidates space with which to reply to the criticism. (202) A newspaper challenged the statute on First Amendment grounds, arguing that it could not be constitutionally forced to print matter with which it disagreed. (203) The state argued that the statute served the important First Amendment goal of ensuring that voters hear a reasoned articulation of the positions on both sides of every political debate. (204) The Court sustained the challenge, holding that the statute impermissibly interfered with the newspaper's "exercise of editorial control and judgment." (205) This rationale was akin to that underlying the Hurley decision described above; (206) like the compulsory inclusion of the homosexual group in the parade, the mandatory reply space statute altered the content of the newspaper's speech, causing it to be publicly associated with views it did not hold. One need only consider a simple variation on the facts of the Tornillo case to imagine how the government might limit a press entity's ability to exclude unwanted persons and consequently deter its expressive activity. Imagine that, instead of requiring that a newspaper provide reply space to a criticized candidate, a state statute required newspapers, the writers of which were overwhelmingly affiliated with one political party, to hire one or more writers associated with opposing parties. The state legislature intends to ensure that newspapers' reporting is "balanced" and that the market dominance of a newspaper affiliated with one political party will not result in the suppression of opposing views. This hypothetical law implicates freedom of expressive association concerns: It penalizes newspapers predominantly staffed with writers adhering to a given political party, and thus imposes a significant cost on the collective expressive activities of publications with a clear political viewpoint. As the closely analogous example of Tornillo shows, the possibility that a governmental actor may infringe upon a press entity's freedom of association is not at all remote. The Court's holding in Tornillo did not erect an insuperable barrier to such governmental acts; its willingness to uphold similar rules in the broadcast television context (207) and its subsequent decisions with respect to cable television regulations requiring that cable operators carry local television channels (208) show that it is not unreceptive to arguments that private organizations should be required to fund and disseminate the speech of others in order to level the playing field among competing speakers. B. The Disclosure Context The second type of case described above, in which a governmental action compels an organization to reveal information about its members, has arisen on occasion in the lower courts. The case of Bursey v. United States (209) is a prominent example of the application of a disclosure requirement to a press entity. (210) The decision involved a federal grand jury investigation of a newspaper affiliated with the Black Panther Party (the "Party"). (211) Federal prosecutors commenced the investigation when the Party's chief of staff delivered a speech in a public park in which he stated that the Party would "kill Richard Nixon," who was at the time President of the United States. (212) An author writing for the newspaper quoted the speech in her article. (213) Subsequently, the government summoned members of the newspaper's staff before the grand jury, and asked that they name the other staff members and answer questions regarding the internal management of the newspaper. (214) The staff members argued that the First Amendment afforded them the right to refuse to disclose the information the government sought. (215) The court agreed with the staff members' claim, holding that the potential harm to the individuals whose names the government was demanding outweighed their usefulness to the investigation. (216) As the court in Bursey acknowledged, the government's request for the names of the newspaper staff members and the details of the newspaper's internal organization presented significant freedom of association concerns. (217) If the claimants had answered the government's questions, they would have supplied the government with additional targets for investigation and prosecution; this would have had the effect of punishing affiliation with the publication and thus creating the deterrent effect with which the freedom of expressive association doctrine is concerned. (218) The Bursey case demonstrates that the notion that the press may be subjected to governmental actions with a deterrent effect on its collective expressive activities is not at all farfetched. The impact of affording press entities the same associational rights that other expressive groups enjoy would not be limited to Pell-type situations (219) in which the government explicitly penalizes a given type of expressive activity. As shown in this section, there is a very real possibility that the associational fights of the press may be implicated in future cases involving forced-association and mandatory-disclosure situations of the types described above. (220) CONCLUSION I have sought to prove two propositions in this Note. First, by demonstrating that the protection of the freedom of association doctrine is not limited to noncommercial organizations and organizations with unified messages, I have sought to prove that the commercial press is as worthy a beneficiary of the doctrine as organizations more traditionally considered "expressive" by the courts. Moreover, I posit that the commercial press can be protected by the doctrine without immunizing it from generally applicable economic regulations. Second, by providing examples of cases in which governmental actions have had a deterrent effect on press entities' expressive activities, I have sought to show that the press has not been afforded the same degree of associational protection as the doctrine's typical beneficiaries. Reconciling this discrepancy by granting press entities the full protection of the right to freedom of expressive association, I argue, will safeguard the press's ability to serve the First Amendment values the courts so highly praise. (1.) See, e.g., Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (stating that an evidentiary privilege protecting information exchanged between a reporter and a source would require the courts to "define those categories of newsmen who qualified for the privilege," which would be "a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer ... just as much as of the large metropolitan publisher"); Reporters Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1063 (D.C. Cir. 1978) (noting that attempting to define the press for the purpose of administering a reporter-source privilege would require courts to "devise criteria for estimating the Relative [sic] importance of certain information-gathering activities," and thus unwarrantedly require courts to decide, for instance, whether "a novelist's interests in protecting his sources [are] less compelling than a newspaper's"). (2.) See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (lauding the press's "impressive record of service over several centuries" in "guard[ing] against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism"); Estes v. Texas, 381 U.S. 532, 539 (1965) (noting the press's role in "exposing corruption among public officers and employees"). (3.) See, e.g., Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585 (1983) (quoting Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936)) ("`[A]n untrammeled press [is] a vital source of public information' ... and an informed public is the essence of working democracy."). (4.) See, e.g., Saxbe v. Wash. Post Co., 417 U.S. 843, 862 (1974) (Powell, J., dissenting) ("No aspect of [the First Amendment] is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny."); Mills v. Alabama, 384 U.S. 214, 218 (1966) ("[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."). (5.) See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) ("[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw."); Grosjean, 297 U.S. at 249-50 ("`The evils to be prevented [by the First Amendment] were not the censorship of the press merely, but any action of the government by means of which it might prevent ... free and general discussion of public matters.'") (quoting 2 THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 886 (8th ed. 1927)). (6.) See, e.g., Mills, 384 U.S. at 219 ("[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve."); Doe No. 4 v. Doe No. 1, 103 F.3d 234, 242 (2d Cir. 1996) (noting, in the context of criminal trials, the press's instrumental role as a "check on potential governmental abuse in both the fact-finding and trial stages of a case"). (7.) I use the term "governmental action" to denote any action performed by a governmental official or entity in his/her/its official capacity, including but not limited to the passage of statutes, the enforcement of statutes, and the action by members of the executive branch pursuant to that branch's inherent powers. (8.) It should be emphasized that the freedom of association doctrine does not merely prevent the government from completely banning concerted acts of expression. It also prevents the government from imposing a high cost on the engagement in such acts and thus deterring people from performing them. I use the term "cost" in a nontechnical sense, meaning simply that when the government imposes a cost on membership in a group, it makes persons who are members of that group worse off--whether physically or psychologically--than they would be if they were not members of the group. (9.) The articulation of a principle by which one can tell whether a given activity is protected by the Speech Clause must be reserved for other commentators, as the Supreme Court's jurisprudence on the subject requires much deciphering; the Court suggested in Spence v. Washington, 418 U.S. 405, 410-11 (1974), that a given activity is expressive and thus merits the protection of the Speech Clause if (1) the person who engages in the activity intends to convey a message to others and (2) it is likely that, when the person performs the activity, people observing understand him or her to be conveying that message. Spence has been criticized by many commentators, however, and is rarely cited by the current Court. See, e.g., Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1252 (1995) (arguing that the Spence test, if scrupulously applied, would constitutionally protect violent and destructive acts). (10.) U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."). I focus on the Speech Clause, and not any of the Amendment's other clauses, for two reasons. First, the Supreme Court has generally treated the term "speech" in the First Amendment and the term "expressive activity," which it commonly employs in its opinions, as synonymous. For opinions using the terms interchangeably, see Hill v. Colorado, 530 U.S. 703, 720 (2000) ("As we have repeatedly explained, government regulation of expressive activity is `content neutral' if it is justified without reference to the content of regulated speech.") (emphasis added) (citation omitted), and Ward v. Rock Against Racism, 491 U.S. 781, 793 (1989) (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755 (1988)) ("Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that `ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity.'") (emphasis added) (alteration in original). For this reason, the right to freedom of expressive association--in the view of the courts--protects only groups engaged in activities safeguarded by the Speech Clause. This is not to say that peaceable assembly, petitioning for a redress of grievances, and acting in accordance with one's religious beliefs are not protected by the Speech Clause, but rather that they must be if groups engaged in such activities are to validly claim the protection of the right to freedom of expressive association. Second, courts do not generally grant the right of freedom of expressive association to groups solely by virtue of their engagement in any of the other activities enumerated in the Amendment (i.e., the "free exercise of religion," exercising one's "freedom of the press," engaging in "peaceable assembly," and "petitioning the government for a redress of grievances"). Some of the activities ostensibly protected in the Amendment's text--such as exercising the freedom of the press, peaceably assembling, and petitioning the government for a redress of grievances--have never been granted protection by the Court beyond that already provided by the Speech Clause, regardless of whether such activities are performed in groups. As to the Press Clause, see David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 456-57 (1983) (demonstrating that "no Supreme Court decision has rested squarely on the press clause, independent of the speech clause"). As to the Petition and Assembly Clauses, see JOHN E. NOWAK, RONALD D. ROTUNDA & J. NELSON YOUNG, CONSTITUTIONAL LAW [section] 16.53, at 1004 (3d ed. 1986) (stating that "later cases indicate that it is not significant whether one is engaged in speech, association, assembly or petition [as these] four rights are now considered to be elements of a broad right to freedom of expression"), and James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287, 329 (1990) (arguing that courts downplay distinctions between the rights provided to the people by the Speech, Assembly, and Petition Clauses). Finally, the Supreme Court has held that the Free Exercise Clause does not exempt persons engaged in a religious activity from the effects of a governmental action that was not taken with the purpose of impairing religious activities. See Employment Div. v. Smith, 494 U.S. 872 (1990) (holding that the Free Exercise Clause did not provide Indians who used peyote as part of their religious ceremonies with an exemption from the statutory prohibition on the use of the drag, since the statute was not directed at religious practices). The Court thus refused to grant persons engaged in religious activities protection against laws that are neutral in purpose but particularly burdensome for specific groups--the very sort of protection it provides to groups engaged in joint expressive activity. It may be that some persons engaged in group expressive activity disseminate speech with religious overtones, but they gain the protection of the freedom of expressive association doctrine only by virtue of the fact that their group activities are expressive in nature. (11.) See Aptheker v. Sec'y of State, 378 U.S. 500 (1964) (holding a statute denying passports to members of the Communist Party unconstitutional as a violation of the right to freedom of association). (12.) Readers already acquainted with the right to freedom of expressive association will note that this term departs from the lexicon the Supreme Court has developed in its First Amendment jurisprudence; the Court has recently taken to calling a group of people who engage in expressive activity an "expressive association." However, I believe the term "expressive group" lends more clarity to discussions of the right to freedom of expressive association. This is because the Court employs the term "expressive association" to mean both the activity of congregating to engage in expressive activity and a group of people engaged in expressive activity--and sometimes makes use of both meanings of the term within the same sentence. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) ("Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law ... runs afoul of the Scouts's freedom of expressive association.") (emphasis added). (13.) See, e.g., Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) (invalidating, on freedom of association grounds, a state law requiting political parties to permit voters unaffiliated with them to vote in their primaries); Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (striking down the application to a nonprofit advocacy group of a statutory requirement that corporations acquire funds they donate to political candidates from their directors and employees); Anderson v. Celebrezze, 460 U.S. 780 (1983) (holding unconstitutional a state statute requiring an independent political candidate to file a statement of candidacy prior to a registered party candidate); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) (striking down state statute dictating the manner in which a political party was to select its convention delegates). (14.) One of the most frequent recipients of the protection of the freedom of expressive association doctrine in the Court's precedents has been the NAACP, a nonprofit corporation engaged in litigation and public advocacy to achieve legal equality for American racial minorities. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (holding that the freedom of association doctrine precluded a state court from holding some members of the NAACP liable for the threats and violent acts committed by other members of their organization); NAACP v. Button, 371 U.S. 415 (1963) (invalidating on freedom of association grounds the application to the NAACP of a statute prohibiting an organization engaged in litigation from funding the lawsuits of outside parties); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (striking down a discovery order issued by an Alabama state court requiting the NAACP to disclose the names of its rank-and-file members and thus subjecting them to likely violence and harassment). Additional case discussions and information regarding the NAACP's freedom of association litigation can be found in HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT (1965). (15.) Examples of such groups include the Boy Scouts of America, a group devoted to teaching self-esteem and self-sufficiency to young boys, and the Junior Chamber of Commerce (Jaycees), an organization formed to promote the business skills and opportunities of its members. See Boy Scouts, 530 U.S. at 644 (holding, on freedom of association grounds, that a state civil tights law could not be constitutionally applied to force the Boy Scouts to employ a homosexual scoutmaster); Roberts v. United States Jaycees, 468 U.S. 609 (198 |
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