Also known as: expressive associations · freedom of expressive association · right of expressive association
Written by attorneys · grounded in primary & secondary sources — see below
A First Amendment protection that shields groups from compelled inclusion of members when such inclusion would significantly burden the group's ability to advocate its viewpoints. The protection applies when the group engages in expressive activity and the forced member would alter the message the group seeks to convey. It yields only when a state demonstrates a compelling interest and shows that enforcement would not meaningfully impair the group's expression.
Elise Everly, an openly gay volunteer, sought to serve as an assistant leader in a regional youth organization that teaches traditional moral values to adolescents. The organization denied her application after learning of her public advocacy. The denial preserved the group's ability to convey its chosen message without contradiction from leadership.
Elliot Edmonds led a large professional networking association that hosted open career events for anyone interested in business development. The group refused to admit female applicants on the ground that their presence would dilute a claimed tradition of male leadership. A state agency enforced an antidiscrimination statute, and the order stood because the association's size and open recruitment practices meant compliance would not impair its advocacy capacity.
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Elena Estrada chaired a state political party that objected to a new primary format allowing candidates to list party preference without party approval. The party claimed the format would force it to associate with candidates whose views it rejected. The challenge failed because the format did not compel the party to accept the candidates as members or alter its internal message.
Edgar Evers organized an annual cultural parade that selected participants to maintain a specific historical theme. A group seeking to march with a conflicting message sued under a public accommodations statute after being excluded. The organizer prevailed because forced inclusion would have changed the parade's overall expressive content.
Edith Eberhardt led a campus religious society that required officers to affirm a statement of faith on marriage and sexuality. The university revoked official status after the society declined to admit students who could not sign the statement. The revocation was upheld because the all-comers policy regulated access to a limited public forum without directly compelling the group to alter its internal message.
Emily Ellis operated a theater company that staged performances involving nudity as part of its artistic expression. A local ordinance required performers to wear minimal coverings during shows. The ordinance survived challenge because it regulated the manner of expression through a content-neutral rule rather than compelling the company to include unwanted participants.
A state may apply such a law when the group is large and nonselective and the regulation does not significantly impair the group's ability to communicate its message. The state's interest in eradicating discrimination must be compelling and the burden on expression must remain minimal.
The key inquiry is whether the unwanted member's presence would significantly affect the group's ability to advocate its chosen viewpoints. Courts examine the group's sincerely held objectives and whether inclusion would send a contradictory message to members and the public.
Protection is available but weaker for large, nonselective groups that hold themselves out to the public. Such organizations may be required to comply with neutral antidiscrimination rules when compliance leaves their advocacy capacity intact.
Organizers retain the right to control participant selection when inclusion would alter the event's overall message. This protection applies even on public streets if the event constitutes the organizers' own expressive activity.
…interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ right to freedom of expressive association. The state’s interest in eliminating discrimination is substantial, but that interest does not justify the state’s abridgment of the Boy Scouts’ constitutional rights. See Hurley ,…