Speech and Expression
Speech and Association
Whitney v. California (1925)
274 U.S. 357 (1925)
Vote: 9-0
Opinion: Sanford
Decision: Affirmed
Majority: Sanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
Concurrence: Brandeis, joined by Holmes
MR. JUSTICE SANFORD delivered the opinion of the Court.
By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. Statutes, 1919, c. 188, p. 281. She was tried, convicted on the first count, and sentenced to imprisonment. The judgment was affirmed by the District Court of Appeal. 57 Cal. App. 449. Her petition to have the case heard by the Supreme Court was denied. Ib., 453. And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court of Appeal, the highest court of the State in which a decision could be had.
The pertinent provisions of the Criminal Syndicalism Act are:
“Section 1. The term ‘criminal syndicalism’ as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.”
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And here, since it appears […] that the question whether the Syndicalism Act and its application in this case was repugnant to the due process and equal protection clauses of the Fourteenth Amendment was considered and passed upon by [the Court of Appeals] — this being a federal question constituting an appropriate ground for a review of the judgment — we conclude that this Court has acquired jurisdiction under the writ of error. The order dismissing the writ for want of jurisdiction will accordingly be set aside.
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… [T]he defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the “radical” group and the old-wing Socialists. The “radicals” — to whom the Oakland delegates adhered — being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party.
… [T]he Party declared that it was in full harmony with “the revolutionary working class parties of all countries,” and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its purpose was “to create a unified revolutionary working class movement in America,” organizing the workers as a class in a revolutionary class struggle to conquer the capitalist state for the overthrow of capitalist rule, the conquest of political power and the establishment of a working class government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists, which should make and enforce the laws, reorganize society on the basis of Communism, and bring about the Communist Commonwealth[…].
… [I]t is urged that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of “a subsequent event brought about against her will by the agency of others,” with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of “prophetic” understanding, she failed to foresee the quality that others would give to the convention. The argument is, in effect, that the character of the state organization could not be forecast when she attended the convention; that she had no purpose of helping to create an instrument of terrorism and violence; … that it was not until after the majority of the convention turned out to be “contrary-minded, and other less temperate policies prevailed,” that the convention could have taken on the character of criminal syndicalism, and that, as this was done over her protest, her mere presence in the convention, however violent the opinions expressed therein, could not thereby become a crime.
[This] argument entirely disregards the facts: that the defendant had previously taken out a membership card in the National Party, that the resolution which she supported did not advocate the use of the ballot to the exclusion of violent and unlawful means of bringing about the desired changes in industrial and political conditions, and that, after the constitution of the California Party had been adopted, and this resolution had been voted down and the National Program accepted, she not only remained in the convention, without protest, until its close, but subsequently manifested her acquiescence by attending as an alternate member of the State Executive Committee and continuing as member of the Communist Labor Party.
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The Act, plainly, meets the essential requirement of due process that a penal statute be “sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties,” and be couched in terms that are not “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., (1926).
… Neither is the Syndicalism Act repugnant to the equal protection clause on the ground that, as its penalties are confined to those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions, it arbitrarily discriminates between such persons and those who may advocate a resort to these methods as a means of maintaining such conditions.
… [T]here is no substantial basis for the contention that the legislature has arbitrarily or unreasonably limited its application to those advocating the use of violent and unlawful methods to effect changes in industrial and political conditions, there being nothing indicating any ground to apprehend that those desiring to maintain existing industrial and political conditions did or would advocate such methods.
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Nor is the Syndicalism Act, as applied in this case, repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association.
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By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. That determination must be given great weight …
We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State.
We find no repugnancy in the Syndicalism Act as applied in this case to either the due process or equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity has been here challenged.
The order dismissing the writ of error will be vacated and set aside, and the judgment of the Court of Appeal affirmed.
It is so ordered.
Justice Brandeis, concurring.
[T]he accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.
… [A]lthough the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. Their exercise is subject to restriction if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic, or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. See Schenck v. United States, (1919).
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This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
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Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it …
… [E]ven imminent danger cannot justify resort to prohibition of these functions essential to effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive …
I am unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment. In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.
… Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court.
MR. JUSTICE HOLMES joins in this opinion.
NAACP v. Alabama (1958)
357 U.S. 449 (1958)
Vote: 9-0
Opinion: Harlan
Decision: Reversed
Justice Harlan delivered the opinion of the Court.
We review from the standpoint of its validity under the Federal Constitution a judgment of civil contempt entered against petitioner, the National Association for the Advancement of Colored People, in the courts of Alabama. The question presented is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State’s Attorney General the names and addresses of all its Alabama members and agents, without regard to their positions or functions in the Association. The judgment of contempt was based upon petitioner’s refusal to comply fully with a court order requiring in part the production of membership lists. Petitioner’s claim is that the order, in the circumstances shown by this record, violated rights assured to petitioner and its members under the Constitution.
Alabama has a statute, similar to those of many other States, which requires a foreign corporation, except as exempted, to qualify before doing business by filing its corporate charter with the Secretary of State and designating a place of business and an agent to receive service of process. The statute imposes a fine on a corporation transacting intrastate business before qualifying, and provides for criminal prosecution of officers of such a corporation. Ala. Code, 1940, Tit. 10, §§ 192-198. The National Association for the Advancement of Colored People is a nonprofit membership corporation organized under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its name, and it operates through chartered affiliates which are independent unincorporated associations, with membership therein equivalent to membership in petitioner. The first Alabama affiliates were chartered in 1918. Since that time, the aims of the Association have been advanced through activities of its affiliates, and, in 1951, the Association itself opened a regional office in Alabama, at which it employed two supervisory persons and one clerical worker. The Association has never complied with the qualification statute, from which it considered itself exempt.
In 1956, the Attorney General of Alabama brought an equity suit in the State Circuit Court, Montgomery County, to enjoin the Association from conducting further activities within, and to oust it from, the State.
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Petitioner … contended that its activities did not subject it to the qualification requirements of the statute and that, in any event, what the State sought to accomplish by its suit would violate rights to freedom of speech and assembly guaranteed under the Fourteenth Amendment to the Constitution of the United States … Over petitioner’s objections, the court ordered the production of a substantial part of the requested records, including the membership lists, and postponed the hearing on the restraining order to a date later than the time ordered for production.
… [P]etitioner produced substantially all the data called for by the production order except its membership lists, as to which it contended that Alabama could not constitutionally compel disclosure … The Circuit Court made a further order adjudging petitioner in … contempt. Under Alabama law, effect of the contempt adjudication was to foreclose petitioner from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps to dissolve the temporary restraining order which had been issued ex parte, until it purged itself of contempt.
… We granted certiorari because of the importance of the constitutional questions presented.
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… We think that petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their representative before this Court. In so concluding, we reject respondent’s argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not, of course, parties to the litigation …
If petitioner’s rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are, in every practical sense, identical.
We thus reach petitioner’s claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that, in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action which, although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of the State.
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In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.
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It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, (1950):
“A requirement that adherents of particular religious faiths or political parties wear identifying armbands, for example, is obviously of this nature.”
Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
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It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
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We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner’s refusal to comply with the production order in this respect must fall.
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For the reasons stated, the judgment of the Supreme Court of Alabama must be reversed, and the case remanded for proceedings not inconsistent with this opinion.
Reversed.
Hurley v. Irish GLB of Boston (1995)
515 U.S. 557 (1995)
Vote: 9-0
Decision: Reversed
Justice SOUTER delivered the opinion for a unanimous Court.
The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment.
[…] Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick’s Day-Evacuation Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various South Boston veterans groups. Every year since that time, the Council has applied for and received a permit for the parade, which at times has included as many as 20,000 marchers and drawn up to 1 million watchers. No other applicant has ever applied for that permit. Through 1992, the city allowed the Council to use the city’s official seal, and provided printing services as well as direct funding.
In 1992, a number of gay, lesbian, and bisexual descendants of the Irish immigrants joined together with other supporters to form the respondent organization, GLIB, to march in the parade […]. Although the Council denied GLIB’s application to take part in the 1992 parade, GLIB obtained a state-court order to include its contingent, which marched “uneventfully” among that year’s 10,000 participants and 750,000 spectators.
In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J.”Wacko” Hurley, and the city of Boston, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which prohibits “any distinction, discrimination or restriction on account of … sexual orientation … relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement.”
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We granted certiorari to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers’ own choosing violates the First Amendment. We hold that it does and reverse.
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… [W]e use the word “parade” to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed, a parade’s dependence on watchers is so extreme that nowadays, as with Bishop Berkeley’s celebrated tree, “if a parade or demonstration receives no media coverage, it may as well not have happened.” Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches …
The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that “[s]ymbolism is a primitive but effective way of communicating ideas,” West Virginia Bd. of Ed. v. Barnette, (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so) [other examples omitted], and even “[m]arching, walking or parading” in uniforms displaying the swastika, National Socialist Party of America v. Skokie, (1977).
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Respondents’ participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it, as the trial court found, in order to celebrate its members’ identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. […] In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription “Irish American Gay, Lesbian and Bisexual Group of Boston.” GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own.
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[T]he disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade. Although the state courts spoke of the parade as a place of public accommodation, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts’ application of the statute had the effect of declaring the sponsors’ speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners’ speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State’s power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.
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Petitioners’ claim to the benefit of this principle of autonomy to control one’s own speech is as sound as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent’s expression in the Council’s eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another.
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Respondents argue that any tension between this rule and the Massachusetts law falls short of unconstitutionality, citing the most recent of our cases on the general subject of compelled access for expressive purposes, Turner Broadcasting System, Inc. v. FCC, (1994). There we reviewed regulations requiring cable operators to set aside channels for designated broadcast signals, and applied only intermediate scrutiny. Respondents contend on this authority that admission of GLIB to the parade would not threaten the core principle of speaker’s autonomy because the Council, like a cable operator, is merely “a conduit” for the speech of participants in the parade “rather than itself a speaker.” But this metaphor is not apt here, because GLIB’s participation would likely be perceived as having resulted from the Council’s customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well. A newspaper, similarly, “is more than a passive receptacle or conduit for news, comment, and advertising,” and we have held that “[t]he choice of material … and the decisions made as to limitations on the size and content … and treatment of public issues … -whether fair or unfair-constitute the exercise of editorial control and judgment” upon which the State can not intrude … Thus, when dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.
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Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow “any identity of viewpoint” between themselves and the selected participants.
… Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to “silence the voice of competing speakers,” as cable operators do with respect to program providers who wish to reach subscribers, Turner Broadcasting, supra. Nor has any other legitimate interest been identified in support of applying the Massachusetts statute in this way to expressive activity like the parade.
… When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker’s autonomy forbids.
… Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.
Our holding today rests not on any particular view about the Council’s message but on the Nation’s commitment to protect freedom of speech. Disapproval of a private speaker’s statement does not legitimize use of the Commonwealth’s power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.
It is so ordered.
BSA v. Dale (2000)
530 U.S. 640 (2000)
Vote: 5-4
Majority: Rehnquist, joined by O’Connor, Scalia, Kennedy, Thomas
Dissent: Stevens, joined by Souter, Ginsburg, Breyer
Dissent: Souter, joined by Ginsburg, Breyer
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
… The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey’s public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey’s public accommodations law in this way violates the Boy Scouts’ First Amendment right of expressive association. We hold that it does.
James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council’s Cub Scout Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accounts, Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting’s highest honors.
Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and others that he is gay. He quickly became involved with, and eventually became the copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers’ need for gay role models. In early July 1990, the newspaper published the interview and Dale’s photograph over a caption identifying him as the copresident of the Lesbian/ Gay Alliance.
Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth Council’s decision. Kay responded by letter that the Boy Scouts “specifically forbid membership to homosexuals.”
In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy Scouts had violated New Jersey’s public accommodations statute and its common law by revoking Dale’s membership based solely on his sexual orientation. New Jersey’s public accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation …
We granted the Boy Scouts’ petition for certiorari to determine whether the application of New Jersey’s public accommodations law violated the First Amendment.
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The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, (1988). But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden “by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. US Jaycees, (1984), supra.
To determine whether a group is protected by the First Amendment’s expressive associational right, we must determine whether the group engages in “expressive association.” The First Amendment’s protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private.
… [T] he general mission of the Boy Scouts is clear: “[T]o instill values in young people.” Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy Scouts’ values-both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity.
… The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,” Brief for Petitioners 39, and that it does “not want to promote homosexual conduct as a legitimate form of behavior.” We accept the Boy Scouts’ assertion. We need not inquire further to determine the nature of the Boy Scouts’ expression with respect to homosexuality …
We must then determine whether Dale’s presence as an assistant scoutmaster would significantly burden the Boy Scouts’ desire to not “promote homosexual conduct as a legitimate form of behavior.” As we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression … Dale, by his own admission, is one of a group of gay Scouts who have “become leaders in their community and are open and honest about their sexual orientation.” Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
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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 to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts’ freedom of expressive association. We conclude that it does.
State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation-like inns and trains. Romer v. Evans, (1996). Over time, the public accommodations laws have expanded to cover more places. New Jersey’s statutory definition of” ‘[a] place of public accommodation'” is extremely broad. […] As the definition of “public accommodation” has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.
… [A]fter finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any “serious burden” on the organization’s rights of expressive association … [T]he associational interest in freedom of expression has been set on one side of the scale, and the State’s interest on the other.
Dale contends that we should apply the intermediate standard of review enunciated in United States v. O’Brien, (1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation that has only an incidental effect on protected speech-in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey’s public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection. Thus, O’Brien is inapplicable.
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We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message.”While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Hurley v. GLIB of Boston, (1995).
The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.