Recent Court interpretations of the Assembly Clause have tended to justify Congressman Sedgwick’s prediction that most cases involving this right have been subsumed into the more general right of free speech. Nevertheless, the Court has also described a separate protection for “association” or “expressive association”; this right appears to be a blending of free speech, assembly, and sometimes even the free exercise of religion. In 1958 the Court ruled:
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.
NAACP v. Patterson (1958)
A few years later in NAACP v. Button (1963) the Court added that the 1st Amendment protects not only abstract discussion but also association for the purpose of “vigorous advocacy.”
The concept of “expressive association” was primarily developed in reaction to some state regulations attempting to curb civil rights activity in the 1950s and 60s. Later, an appeal to expressive association was used (ironically but unsuccessfully) in Roberts v. United States Jaycees (1984) in an attempt to exclude women from organizations whose membership was restricted to men.
A significant case involving freedom of association is Boy Scouts of America v. Dale (1999), in which the Supreme Court upheld the right of the Boy Scouts to bar homosexuals from serving as troop leaders. The Court held that requiring the Scouts to associate with a gay leader “violates the Boy Scouts’ 1st Amendment right of expressive association.” The Boy Scouts argued that homosexual conduct was inconsistent with the values it sought to instill in its members, and obliging them to have a homosexual as a troop leader would “force the organization to send a message . . . that the Boy Scouts accept homosexual conduct as a legitimate form of behavior.”