|Ashutosh Bhagwat [View as PDF]|
120 Yale L.J. 978 (2011).
This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Supreme Court’s approach to this subject. The Article proceeds in three parts. Part I explores the doctrinal roots of the right of association and reviews recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that the assembly, petition, and association rights historically were important, independent rights of coequal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition, and association should be perceived as interrelated and mutually reinforcing mechanisms designed to advance democratic self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions regarding what the theory of associational speech teaches us about the basic nature of free speech and about the interrelationships between the various provisions of the First Amendment. It also notes some limits of the associational speech concept.