Freedom of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. It can be described as the right of a person coming together with other individuals to collectively express, promote, pursue and/or defend common interests.[1] Freedom of association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including the United States Bill of Rights, article 11 of the European Convention on Human Rights, section 2 of the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.
Freedom of association is manifested through the right to join a trade union, to engage in free speech or to participate in debating societies, political parties, or any other club or association, including religious denominations and organizations, fraternities, and sport clubs and not to be compelled to belong to an association.[2] It is closely linked with freedom of assembly, particularly under the U.S. Bill of Rights. Freedom of assembly is typically associated with political contexts. However, (e.g. the U.S. Constitution, human rights instruments, etc.) the right to freedom of association may include the right to freedom of assembly.
The courts and delegated officers of local jurisdictions may impose restrictions on any of the rights of a convicted criminal as a condition of a legal stipulation. Rights to freedom of association and freedom of assembly are waived under certain circumstances, such as a guilty plea or conviction, restraining orders and probationer's search and seizure procedures.
History[edit]
The general freedom to associate with groups according to the choice of the individual, and for the groups to take action to promote their interests, has been a necessary feature of every democratic society. Because freedom of association necessarily recognizes pluralistic sources of power and organisation, aside from the government, it has been a primary target for repression by all dictatorial societies. In the United Kingdom, all forms of "combination" were prohibited and criminal, particularly worker organisations, until the Combination Act 1825. After this, it was still not by the Companies Act 1856, the Trade Union Act 1871 and the Criminal Conspiracy and Protection of Property Act 1875 that companies and then trade unions became generally lawful. In Germany, a similar set of repressive laws were put in place against both trade unions and social democrat organisations by the Bismarck government under the Sozialistengesetze (the "Socialist Acts") in 1878. These remained in force until 1890. In 1933, trade unions were once again prohibited by the Fascist dictatorship of Hitler's National Socialist party, and the existing unions were nationalized and combined into a single government controlled German Labor Front. In West Germany after World War II, free trade unions were quickly resurrected and guaranteed by the German Grundgesetz. In the United States, trade unions were classified by various state courts, at various times, as being in restraint of trade. Under the Clayton Act of 1914, trade unions were given a general freedom to organize and to act collectively to secure collective agreements, however further hurdles were put in place until the National Labor Relations Act 1935 created a comprehensive labor code.
Issues[edit]
Intimate association[edit]
A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are considered forms of "intimate association." The paradigmatic example of "intimate association" is the family. Depending on the jurisdiction it may also extend to abortion, birth control and private, adult, non-commercial and consensual sexual relationships.
Expressive association[edit]
In the United States, expressive associations are groups that engage in activities protected by the First Amendment – speech, assembly, press, petitioning government for a redress of grievances, and the free exercise of religion. In Roberts v. United States Jaycees, the U.S. Supreme Court held that laws banning associations from excluding people for reasons unrelated to the group's expression are constitutional. However, in the subsequent decisions of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. The government cannot, through the use of anti-discrimination laws, force groups to include a message that they do not wish to convey.
This concept continues to apply broadly to private groups, notwithstanding the Supreme Court's ruling in Christian Legal Society v. Martinez (2010), which upheld Hastings College of Law policy that a student group on campus could not enjoy university recognition while excluding people from group activities by requiring them to undergo a religious test. The Court found that the school's conditions on recognizing student groups were viewpoint neutral and reasonable. The policy requires student organizations to allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs" and so, can be used to deny the group recognition as an official student organization because it had required its members to attest in writing that "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son, is Lord of my life." The Court reasoned that Hastings sought to treat all student groups equally; the CLS, on the other hand, sought an exemption to apply a religious test to their membership. Thus, the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum.[8]
Theory[edit]
Democracy and civil society[edit]
Jeremy McBride argues that respecting the freedom of association by all public authorities and the exercising of this freedom by all sections of society are essential both to establish a "genuine democracy" and to ensure that, once achieved, it remains "healthy and flourishing". In this regard he sees the formation of political parties as a significant manifestation of the freedom of association.
The freedom of association is however not only exercised in the political sense, but also for a vast array of interests – such as culture, recreation, sport and social and humanitarian assistance. Jeremy McBride argues that the formation of non-governmental organizations (NGOs), which he equates with civil society, is the "fruit of associational activity".[1]
Libertarian[edit]
Right-libertarians believe that while freedom of association includes the right for workers to organise as unions and to withdraw their labour it also recognises the right of an employer to replace that labour.[12] They also believe that where unions employ coercive or violent tactics, such behaviours would be in breach of both individual rights and property rights. Some critics of unionism allege that such breaches have frequently been the case with union activity.[13]