3 - The Association versus the Individual

Summary

The Supreme Court’s freedom of association jurisprudence, broadly construed, is deeply problematic.¹ The Founders framed the First Amendment in human terms. Justice Scalia, who was in the majority in the controversial Citizens United decision that afforded corporations (a kind of association) a free speech right to spend unlimited sums on political “speech,” has himself acknowledged “that when the Framers ‘constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.’”² However, what began as an individual First Amendment right to join with a group for expressive purposes, which was derived from that individual’s explicit right to speak in the First Amendment, over time became a right possessed by the association itself. Scalia’s justification for expanding this right beyond the individual was the seemingly intuitive assumption that an “individual person’s right to speak includes the right to speak in association with other individual persons.”³ However, individual speech and associational speech are fundamentally different, and often irreconcilable.