17. Con Law: Freedom of Association and Belief

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rubidoux
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17. Con Law: Freedom of Association and Belief
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2012-04-10 16:49:12
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freedom of association
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  1. NATURE OF THE RIGHT
    The right to join together with other persons for expressive or political activity is protected by the 1st amendment. However, the right to associate for expressive purposes is not absolute. Infringements on the right may be justified by compelling state interests unrelated to the suppression of ideas that cannot be achieved through means sugnificantly less restrictive of associational freedoms.
  2. ELECTORAL PROCESS:
    PRINCIPLES
    The Court uses a balancing test in determining whether a regulation of the electoral process is valid: if the restriction on 1st amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states' important regulatory interests.
  3. ELECTORAL PROCESS:
    BALLOT REGULATION
    SIGNATURE REQUIREMENTS: in the interests of running an efficient election, a requirement that candidates obtain a reasonable number of signatures to get on the ballot is okay, but the Court struck down a severe ballot restriction requireing new political parties to collect twice as many signatures to run for county office as for state office.

    SINGLE PARTY LIMITATION: okay to prohibit an individual from appearing on the ballot as the candidate of more than one party. The state's interest in ballot integrity and political stability are sufficiently weighty.

    NONPARTISAN BLANKET PRIMARY: State primary ballot law providing that candidates self-identify their party preference and that the two top vote getters advance to the general election does not on its face violate the association rights of political parties.
  4. ELECTORAL PROCESS:
    PARTY REGULATION
    The state has less interest in governing party activities than in governing elections in general.

    The Court has held invalid regs concerning the selection of delegates to a national party convention and the selection of candidates at such elections.
  5. ELECTORAL PROCESS:
    LIMITS ON CONTRIBUTIONS
    A statute limiting election campaign contributions is tested under intermediate scrutiny -- it must be closely drawn to match a sufficiently important interest.

    Laws limiting the amount of money that a person or group may contribute to a political candidate are valid, since the gov't has a sufficiently important interest in stopping the fact or appearance of corruption that may result from large contributions. Such laws do not substantially restrict freedom of expression or freedom of association.

    However -- a law increasing contribution limits for a candidate whose wealthy opponent achieves an advantage by spending personal funds violates the 1st amendment.

    The gov't may not limit contributions to a political committee that supports or opposes a ballot referendum. Such a limitation on contributions to influence referendum elections violates the freedoms of speech and association.

    The gov't may require a political party or committee to disclose the names of contributors or recipients of money to or from the party or committee. However, if the party or committee can show a reasonable probability that disclosure will cause harm to the party, committee, or private individuals, they have a 1st amendment right to refuse to make such disclosures.
  6. ELECTORAL PROCESS:
    LIMITS ON EXPENDITURES

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    Laws limiting the amount that an individual (including a candidate) or group may spend on a political campaign are invalid. Such laws impose direct and substantial restraints on political speech and do not satisfy the exacting scrutiny applicable to limitations on core 1st amendment rights of political expression. Gov't may not restrict the right of wealthy persons to enhance the voice of others.
  7. REGULATION OF CORE POLITICAL SPEECH
    Will be upheld only if it passes muster under strict scrutiny.

    A law prohibiting campaign activity within 100 feet of a polling place is valid. Even though the law is content based and concerns an essential element of free speech, it is necessary to serve the compelling interest of preventing voter intimidation.
  8. BAR MEMBERSHIP AND PUBLIC EMPLOYMENT:
    RESTRAINTS ON CONDUCT
    If gov't employer seeks to fire an employee for speech-related conduct, one of two tests will apply, depending on whether the speech involved a matter of public concern. If it concerns a matter of public concern, courts must carefully balance the employee's rights as a citizen to comment against the gov't's interest as an employer in the efficient performance of public service. If the speech did not involve a matter of public concern, the courts should give a wide degree of deference to the gov't employer's judgement concerning whether the speech was disruptive.

    OFFICIAL DUTY EXCEPTION: A gov't employer may punish a public employee's speech whenever the speech is made pursuant to the employee's official duties. This is true even if the speech touches on a matter of public concern.

    PARTICIPATION IN POLITICAL CAMPAIGNS: the federal gov't may prohibit executive branch employees from taking an active part in political campaigns -- to discourage partisanship and to protect employees from being coerced to work for the election of thier employers.

    PATRONAGE: The 1st amendment freedoms of political belief and association forbid the hiring, promotion, transfer, firing, or recall of a public employee because of political party affiliation unless the hiring authority demonstrates that the party affiliation is an appropriate requirement for the effective performance of the public office involved (policy making or confidential nature of work).
  9. BAR MEMBERSHIP AND PUBLIC EMPLOYMENT:
    LOYALTY OATHS
    It is permissible for the federal gov't to require employees and other public officers to take loyalty oaths. However, they must not be overbroad or vague so that they have a chilling on 1st amendment activities.

    A loyalty oath for public employees that they "promote respect for the flag and reverence for law and order" is void for vagueness, since a refusal to salute the flag on religious grounds might be found in breach thereof.
  10. BAR MEMBERSHIP AND PUBLIC EMPLOYMENT:
    DISCLOSURE OF ASSOCIATIONS
    Forcing disclosure of 1st amendment activities as a condition of public employment, bar membership, or other public benefits may have a chilling effect. Thus, states cannot force every prospective gov't employee to disclose every organizational membership. Such a broad disclosure has insufficient relation to loyalty and professional competence, and the state has available less drastic means to achieve its purpose. The state may inquire only into those activities that are relevant to the position.
  11. BAR MEMBERSHIP AND PUBLIC EMPLOYMENT:
    PRACTICE OF LAW

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    Regulation of the legal profession may conflict with the freedom of association rights of certain groups because it may impair their ability to band together to advise each other and utilize counsel in their common interest.

    To overcome a group's right to exercise its 1st amendment rights, the state must show a substantial interest, such as evidence of objectionable practices occurring or an actual or clearly threatened conflict of interest between lawyer and client.

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