Friends, Associates and Associations: Theoretically and Empirically Grounding the Freedom of Association

65 Pages Posted: 11 Mar 2014

See all articles by Tabatha Abu El-Haj

Tabatha Abu El-Haj

Drexel University Thomas R. Kline School of Law; Thomas R. Kline School of Law, Drexel University

Date Written: March 10, 2014

Abstract

This Article argues that while the freedom of association is back at the center of the First Amendment, it suffers from the fact that it has been both theoretically and doctrinally subsumed by the freedom of speech. The First Amendment’s self-governance interest is necessarily broader than an interest in political debate and a vibrant marketplace of political ideas.

Association and associations enable the political participation that can turn ideas and debate into the action required to create democratic accountability. Free association doctrine is, therefore, uniquely positioned to promote representative government by protecting conditions necessary for an active citizenry.

A reoriented freedom of association doctrine would focus on how its protections affect civic and political engagement, taking into account findings from the empirical sciences. The result would be a unique right that furthers the self-governance interest of the First Amendment by protecting groups (formal and informal) and their capacity to act. This would ensure, first, that the First Amendment protects the participation necessary for meaningful self-governance and, second, that free association doctrine is not redundant. Free speech doctrine could continue to attend to its traditional ends.

Keywords: First Amendment, Freedom of Association, Corporations, Citizens United v. FEC, Illiberal Groups, Dale v. Boy Scouts of America, Political Participation, Self-Governance, Democracy

Suggested Citation

Abu El-Haj, Tabatha, Friends, Associates and Associations: Theoretically and Empirically Grounding the Freedom of Association (March 10, 2014). Arizona Law Review, Vol. 56, 2014, Drexel University School of Law Research Paper No. 2014-A-01, Available at SSRN: https://ssrn.com/abstract=2407049

Tabatha Abu El-Haj (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

HOME PAGE: http://drexel.edu/law/faculty/fulltime_fac/Tabatha%20Abu%20El-Haj/

Thomas R. Kline School of Law, Drexel University ( email )

3141 Chestnut St
Philadelphia, PA 19104
United States

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