Judges and lawyers seem to love (or love to hate) legal metaphors. Take, for example, Justice Stevens's marketplace-for-ideas metaphor in which ideas are free to compete, or how about Chief Justice Roberts's "judges-are-like-umpires" metaphor. And, of course, I would be remiss if I did not also mention the classic "fruit-of-the-poisoneous-tree" metaphor.
In keeping with this tradition, imagine the Constitution not as a single document, but, rather, as a family. Each constitutional right represents a member of the family. Some of the family members are older and wiser (e.g., the right to free speech), while others are young and still developing (e.g., the right to privacy). Within this family framework, how closely related are the right to free speech and the right to freely associate? Are they "next of kin" or distant relatives? To answer this question and appreciate its relevance, a little background is necessary.
A. What is the "Freedom of Association"?
The constitutional right to “freely associate” protects two separate and unique categories of conduct. On one hand, it protects “the freedom of intimate association, which is coextensive with the right to privacy.” LaTourelle v. Barber, No. CIV S-10-2667-MCE-CMK (E.D. Cal. Jan. 23, 2012). The right to form intimate, personal relationships with others is protected from unwarranted state interference. Although no one provision of the Constitution explicitly creates a "freedom of association," the right nevertheless exists based on the idea that “emotional enrichment from close ties with others” is “central to any concept of liberty.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
This constitutional right also protects “the freedom of expressive association,” which includes the right to assemble with others in public to express ideas, exercise religion, and partake in other activities protected from undue government interference by the First Amendment. LaTourelle, No. CIV S-10-2667-MCE-CMK.
B. The Public-Concern Test
Today’s circuit split involves the “public-concern” test introduced in Connick v. Myers, 461 U.S. 138 (1983). Under this test, a government employer is said to have violated the First Amendment’s speech protection if it retaliates against a public employee for speaking in their private capacity on a matter of public concern. But does the public-concern test for freedom of speech claims extend to freedom of association claims as well? The answer depends on how closely related you believe these two sets of constitutional rights are.
C. A Well-Developed Circuit Split
The following courts treat the freedom of speech and freedom of association as "next in kin" by applying the public-concern test to determine whether there has been a violation of an employee’s constitutional right to freely associate:
- Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2003) (“[A] public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern.");
- Klug v. Chicago Sch. Reform Bd. of Trs., 197 F.3d 853, 857 (7th Cir. 1999) ("In this circuit, a public employee is protected from adverse employment consequences based on the exercise of the right to freedom of association only when the associational conduct relates to a matter of public concern."); Marshall v. Allen, 984 F.2d 787, 798 (7th Cir. 1993) (applying Connick to freedom of association claims);
- Edwards v. City of Goldsboro, 178 F.3d 231, 249-50 (4th Cir. 1999) (applying the public-concern requirement to a freedom of association claim and observing that "logically, the limitations on a public employee's right to associate are 'closely analogous' to the limitations on his right to speak");
- Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985) ("We perceive no logical reason for differentiating between speech and association in applying Connick to first amendment claims, and hold that it is so applicable."); and
- Martin v. City of Del City, 179 F.3d 882, 888 (10th Cir. 1999) ("This court has applied the principles from Connick v. Myers . . . in deciding First Amendment claims asserted by a public employee, who had claimed violations of her right to freedom of speech, freedom of association, and to petition for redress of grievances.").
Choosing instead to treat freedom of speech and freedom of association as distant relatives, the Fifth and Eleventh Circuits have declined to adopt the public-concern test in the context of freedom of association claims:
- Boddie v. City of Columbus, 989 F.2d 745, 747 (5th Cir. 1993) (holding that a plaintiff asserting a First Amendment freedom of association claim need not show that his or her associational activity touched upon a matter of public concern), and
- Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1989) (finding that Connick does not apply to freedom of association claims); Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987) (holding that a principal who based her freedom of association claim on her connection with protesting parents was not required to demonstrate that her association related to a matter of public concern).