free isn't always free

More on the right of free association, which (as I pointed out yesterday) seems to be a court-ordered emanation from the penumbra of the First Amendment right of the people to peaceably assemble.

The comments intrigue me, and I realize that this issue is far from settled.

Just what is freedom of association and how far does it go?

The right to freedom of association is a right I believe in, especially where it comes down to the individual level. Thus, I think I have as much right as the Boy Scouts to form any sort of association I want, and keep anyone out of it I want. When I go out into the public streets, I have a right to assemble with whomever I want to assemble. Whether -- and to what extent -- that right to assemble includes a right to keep others from assembling in my assembly, that confuses me. Because, don't they have a right to assemble wherever they want, and associate with whomever they want as long as they do so in a peaceful manner?

Is there a right of home-schooled children to compete in public spelling bees? There's a story in today's Inquirer dealing with just that, and the answer is unclear. Pennsylvania state law requires that home-schooled children be allowed to attend public school events and activities, but the school here maintains that the spelling bee is part of its "language arts" curriculum.

The law says that home-schoolers must be allowed to participate in public-school athletics or in any other activities outlined in Section 511 of the Pennsylvania School Code, a definition that includes "exercises, athletics, or games of any kind, school publications, debating, forensic, dramatic, musical, and other activities related to the school program."

It is up to local districts to interpret how that applies to their schools, said Pennsylvania Department of Education spokesman Michael Storm. There is no specific penalty for noncompliance, he added; the family's only remedy would be through the courts.

Avon Grove School District Superintendent Augustus Massaro says the law does not cover the first round of the spelling bee, which is held in school classrooms. "This is a co-curricular, not an extracurricular activity," Massaro said last week. "The early rounds of the spelling bee require participation in the Language Arts program. If you are not part of the school, you can't participate, because this is part of the Language Arts curriculum."

What seems to be going on behind the scenes is that this particular girl won the spelling bee last year and they're afraid she'll win this year, thus hurting the self esteem of the public school bureaucrats who hide behind the passive aggressive claim that it's the children's self esteem that's being hurt.
Senate majority leader Pileggi, whose district the Reynolds family lives in, said that while he could not comment on the specifics of Meghan's situation, "clearly, spelling bees are the type of activity that home-schoolers were to be allowed participation in. That was the intent of the law."

Roger Wilson, a Franklin Township supervisor who is a neighbor of the Reynolds family, helped circulate an e-mail appeal and a petition for Meghan's inclusion that has gathered widespread support and will be presented to the school board tonight, he said.

"I'm concerned that the district is looking for ways to exclude her rather than be open," Wilson said. "You can't help but have the suspicion that she's being excluded because she won last year and they don't want the competition. It's surprising and disappointing that they don't welcome her participation."

It's not surprising at all, and while this case is governed by the interpretation of a specific law, suppose that there was no law, but suppose this was part of a national "public" spelling bee which decided to bar home-schooled kids. Whose First Amendment rights to assemble would be implicated? The kids who were kept out? Or the contest organizers' right to keep them out?

What I am asking is who has the right to assemble, to associate, and with whom? And, assuming that a given individual or group has a right to attend or leave a particular assembly, along with a right to keep others out, at what point should the state be allowed to enforce this right?

Let's turn to another example. Local anti-gay activist Michael Marcavage (the subject of a number of posts in this blog) has just lost a court battle against the Philadelphia Police Department which excluded him from participating in a gay rights event. The court's legal reasoning was that there is no "right to drown out" the speech of other people at their own, properly licensed event:

U.S. District Judge Lawrence F. Stengel on Thursday granted a summary judgment for the city and the event organizers, Philly Pride Presents Inc.

"There is no constitutional right to drown out the speech of another person," Stengel wrote in the 52-page judgement.

The activists, whose case received extensive coverage in the Christian media, argued that the city had violated their First Amendment rights by arresting them at an event on a public street. They claimed police silenced them because of the content of their message. A city judge later dismissed the criminal charges against the 11 defendants.

Organizers of the gay-pride event initially tried to block the protesters from entering, but police escorted the activists in while attempting to confine them to the fringes. The protesters, using bullhorns and signs, were arrested after they disobeyed orders to move. Police said the crowd was threatening to get violent.

Stengel said the gay-pride event had received proper city permits, and the evangelists had neglected to take alternative means to communicate their message, including applying for a permit to hold a counterprotest. He called the activists' claims "simplistic."

Stengel's decision expands upon a 1995 Supreme Court decision that held that the Boston organizers of the St. Patrick's Day Parade could exclude gay protesters from a private parade on public streets. "This is an important decision that supports the First Amendment rights of organizers of all permitted events," said Jeremy D. Frey, an attorney with Pepper Hamilton L.L.P., which provided free representation to Philly Pride Presents.

Ted Hoppe, attorney for the activists, said the decision allows the government to deny free speech in public areas.

The anti-gay activists are appealing. (I'd call them "Christian activists" except that it sounds a bit condescending and presumptuous, and implies that Marcavage speaks for all of Christendom. Those who use the word "Christian" to describe nuts like Marcavage tend to be the activists on the two opposite "sides" and the word is becoming so charged this way that I worry its meaning is being altered. And by "appealing" I mean appealing their case, OK?)

Very distracting even to write, It's getting harder and harder to use ordinary words.

Where was I?

Marcavage. He claims that he has a right to assemble where others have already assembled, in order to yell his message at them. Does he? How far does freedom of association go before it becomes freedom of disassociation? U.S. District Judge Stengel's decision is here in pdf format; it relies on the "time place and manner" doctrine.

I remember attending a pro-Israel demonstration in Berkeley, which was greeted by angry Islamic counter-demonstrators. The latter were waving the PLO flag and attempting to drown out the pro-Israel demonstrators with bullhorns. The BPD was enforcing a rule of separation which required the counter-demonstrators to be on the opposite side of a busy major street, where they could still be heard, but where they were incapable of exercising whatever "right" they had to drown out the pro-Israel demonstrators. There was a lot of emotion present, violent rhetoric was flying, and while I was appalled by the Muslims and on the side of the Israel supporters, I remember feeling sorry for the Berkeley police. Had violence erupted, the cops would have been blamed.

No doubt the Philadelphia police were faced with a similar situation in the case of Marcavage (whose views that homosexuals should be executed have been widely reported in the local gay press). I wish I had easy answers, but they're not staring me in the face.

Ditto the Ku Klux Klan. Every time they want to demonstrate, it requires more police than Klansmen just to keep a semblance of order, and preserve public safety. I shudder to think what would happen if the Klan decided to hold a rally in Philadelphia. But what about the right of the people to peaceably assemble?

And what about "freedom of association" as a subset within the penumbra of the right to peaceably "assemble"? Are they necessarily synonymous? Most of the arguments I hear about freedom of association involve not the affirmative right to associate, but the right to exclusivity in association, to disassociation if you will. Surely, the right to associate includes a right not to associate. In cases where there's a group of people who have assembled in agreement with each other, that's fine. But who has the right to kick out whom? The bare majority of the group that has assembled? Well, what is the group? In the case of a Klan rally, the counter-demonstrators always outnumber the Klan, so why doesn't that give them the "right" to just say no to the Klan? The Klan is easy, but what about a town that decided not to allow Republicans (or gay activists) to assemble? Whose "assembly" is it?

If Marcavage can attend a gay pride festival and yell at them, shouldn't I be allowed to attend the local Saudi Madrassa and yell in their mosque?

Of course, this just an exercise in court-ordered line drawing, so there's really no need for me to be confused. All I need to do is wait for the court decisions to come down, and just say "That's the law!"

I mean, isn't that where freedom of association comes from?

Back to educational issues. I have to say, I have a bit of a problem when that freedom-of-association entity we call the "assembly" is a huge enterprise created and funded with tax dollars decides to exclude some of the very people whose tax dollars made its existence possible. In a historic showdown on June 11, 1963, Alabama Governor George Wallace (backed up by state troopers) physically barred black students from entering the University of Alabama.


Wallace eventually stepped aside in obedience to the superior force posed by federal authorities (in the form of the combined forces of the Attorney General's office and the National Guard).

Who had the right to attend college in the name of freedom of association derived from the right to assemble? All the taxpayers? Or just some of them?

Isn't there also a thing called the 14th Amendment? Isn't that constitutional? Or can amendments to the Constitution be unconstitutional?

Don't laugh.

There's an argument that the Constitution can become undeclarational, but the idea's champions seem more enchanted with the "laws of nature" part than with the "pursuit of happiness" part.


I hate the tyranny of the majority almost as much as I hate the tyranny of the minority, so I'll probably never figure out just how "free" this freedom of association deal really is.

posted by Eric on 01.25.07 at 09:50 AM


The recriminations of emanations from penumbra conundra:

How is it possible that we have "rights", such as the "right" of habeas corpus, the right to privacy, the right to make and drink beer, the right to travel, or that of free association?

Our rights are ours as owners of human DNA, or a human soul, as you will; they do not originate with our government, but rather, we have appointed that minimal government required to secure them. Whether libertarian, conservative, or liberal, we must not yield on this point, and if others appear to do so, we must correct them.

Socrates   ·  January 25, 2007 11:26 AM

(...whoops, not done with comment...)

Socrates   ·  January 25, 2007 11:29 AM

In my view, the thing to watch most closely is that practice of limiting that other fellow's rights because they interfere with our wants. Conservatives want to place limits on gay pride marches partly because they think gayness is shameful, and that you should be ashamed of it, too, but mostly because they don't want to hear about it.

I count myself in that group. While I am pleased at the freedom people have to choose partners, I am also repulsed by those who bring my attention to their private practices. I like the idea of chastity before marriage, but dislike chastity marches. I think breast feeding is great in theory, but am embarrassed by breast-feeding advocacy. I understand that fiber in the diet is important, but detest colon-health commercials. Similarly for Viagra ads, and so on, in exactly the same way as for gay pride displays. "That's great, good for you, but shut the hell up, okay?"

But my embarrassment, or repulsion, or whatever, does not make me want to remove the ', okay?' and replace it with ', or else!'.

Similarly, liberals want to protect the feelings of this or that group with Hate Crime laws, not stopping to consider what shackles are being released from the monster of government.

Punish the sort of thinking you don't want thought today, and be hoist by that petard tomorrow.

Socrates   ·  January 25, 2007 12:24 PM

While interesting this end of the Right to Assemble is less interesting but more litigated than the other side. For example, does the Government have the ability to force you to join a specific group or engage in specific activities? Most would be aghast and say no, forgetting about unions and the manner in which many union members are required by law to join and, thus, coercively assemble with persons they would not have otherwise.

The right to exclude from membership seems much less draconian than a requirement of membership.


Maddog   ·  January 25, 2007 2:14 PM

I think it would have to be something along the lines of “as long as it is not impinging on the rights of others to the point where they have no recourse…”

Iris   ·  January 25, 2007 2:22 PM

9th and 10th Amendments plus common law suffice; no need for an emanational penumbra off the 1st Amendment.

Sigivald   ·  January 25, 2007 2:31 PM

I don't see the connection between the First Amendment right to assemble, a public activity, and the right of association, which is private.

I believe defenders of individual liberty get too caught up in seeking Constitutional imprimature for their views. The Founders had no problem conceiving their rights as anterior to any government, including their own new-founded one. They were wary of relying on their charter of federal organization as the sole bulwark of their liberties, which was why they attached the 9th amendment therunto:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Brett   ·  January 25, 2007 4:17 PM


Agreed with and enjoyed the bulk of this entry but just wanted to point out an incidental issue w/ your 4th paragraph.

"Thus, I think I have as much right as the Boy Scouts to form any sort of association I want, and keep anyone out of it I want."

If the Boy Scouts were a wholly private org which received no government, i.e. taxpayer, sponsorship of their activities, I'd agree with this comparison.

But the reason why the Boy Scouts' anti-gay and anti-atheist standpoints are problematic is the financial and material support they often receive from governmental bodies which are supposed to be representing, in part, the same people whom the Scouts' leadership despises and discriminates against.


Marie   ·  January 26, 2007 11:43 AM

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