Denial of Employment or Public Benefits

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

Generally speaking, the First Amendment prohibits the government from denying an individual access to a job or profession because of the individual’s current or past associations alone. There are, however, some instances in which the Court has upheld employment-related restrictions on association, as discussed below.

During the 1950s and 1960s, the Supreme Court considered actions taken by the federal and state governments to address Communism in the workplace. In 1950, the Court considered the “grave and difficult problem” presented by a federal law that effectively “discouraged” unions from electing members of the Communist Party to leadership positions in the union.1 While recognizing that the law affected protected association, the Court reasoned that the statute mainly regulated “harmful conduct” in the form of political strikes designed to obstruct labor relations and interstate commerce.2 The Court upheld the law, concluding that it was directed not at what Communists “advocate or believe,” but what “they have done and are likely to do again.” 3

Two years later, in Adler v. Board of Education, the Court upheld a New York law that disqualified members of the Communist Party and other state-designated organizations from holding offices or teaching positions in the public school system.4 The Court concluded that the state may deny these individuals “the privilege of working for the [public] school system” because of their “unexplained membership in an organization found by the school authorities, after notice and a hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.” 5

By the mid-1960s, however, the Court largely had abandoned Adler's reasoning.6 For example, in 1966, the Court considered an Arizona law that subjected a state employee to “immediate discharge and criminal penalties” if, at the time of taking the oath of office or thereafter, the employee knowingly was a member of the Communist Party or any other organization whose purposes included the overthrow of the state government.7 The Court held that this “guilt by association” approach violated the First Amendment.8 That the statute applied only to individuals who knew of the organization’s unlawful purpose did not save it.9 The Court held that a “law which applies to membership without the ‘specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms.” 10

In 1967, the Court likewise held unconstitutional a provision of the federal Subversive Activities Control Act of 1950 that prohibited a member of a “Communist-action organization” from gaining employment “in any defense facility.” 11 The Court concluded that the statute violated the First Amendment right of association because it swept “indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.” 12 More precise regulation was needed, the Court explained, to address “the congressional concern over the danger of sabotage and espionage in national defense industries” and comply with the First Amendment.13 “It would indeed be ironic,” the Court observed, “if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile.” 14

In a series of cases involving political patronage requirements that began in the 1970s, the Supreme Court held that the government cannot fire or demote a public employee because of the employee’s political affiliation except in narrow circumstances involving high-ranking employees with policy-making functions.15

Related to association-based employment restrictions are cases involving “loyalty oaths” that required government employees to disclaim membership in certain organizations. These cases are discussed in the Freedom of Speech essay because they involved compelled speech.16 The extent to which the government can require a prospective employee or applicant for a professional license to disclose prior associations is discussed in more detail in another essay.17

While the foregoing cases dealt with employment, the Court has also signaled that group association cannot be the sole basis for denying public benefits. For example, the Court held that a public university’s refusal to register a student group because of its affiliation with a national organization violated the students’ freedom of association.18 Similarly, a state may not require an individual to “forfeit” the right of association “as the price for exercising another” protected right.19

1: Am. Commcn’s Ass’n v. Douds, 339 U.S. 382, 393 (1950). Specifically, the law required the officers of each union to file an affidavit stating that they were not members of the Communist Party in order for the National Labor Relations Board to entertain claims filed by that union. Id. at 385.
2: Id. at 396.
3: Id.
4: 342 U.S. 485, 492 (1952).
5: Id.
6: Keyishian v. Bd. of Regents, 385 U.S. 589, 595, 606 (1967).
7: Elfbrandt v. Russell, 384 U.S. 11, 13, 16 (1966).
8: Id. at 19.
9: Id. at 13.
10: Id. at 19; see also Keyishian, 385 U.S. at 606 (similarly distinguishing “[m]ere knowing membership” from “a specific intent to further the unlawful aims of an organization” ).
11: United States v. Robel, 389 U.S. 258, 260 (1967) (quoting Section 5(a)(1)(D) of the act).
12: Id. at 262.
13: Id. at 266–67.
14: Id. at 264. For a case in which the Court found national security interests to justify restrictions on protected speech and association with foreign organizations, see Amdt1.8.2.5 Material Support Bar.
15: See Elrod v. Burns, 427 U.S. 347, 372 (1976) (plurality opinion) (concluding that political patronage dismissals, in which a public employer fires an employee because of the employee’s affiliation or non-affiliation with a particular political party, violate the First Amendment as a general practice, because they “severely restrict political belief and association” ); id. at 375 (Stewart, J., concurring in the judgment). See also Branti v. Finkel, 445 U.S. 507, 519 (1980) (holding that “the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government” ); Rutan v. Republican Party, 497 U.S. 62, 65 (1990) (holding that “promotion, transfer, recall, and hiring decisions involving low-level public employees” may not be “based on party affiliation and support” ); O’Hare Truck Serv. v. City of Northlake, 518 U.S. 712, 726 (1996) (generally extending “the First Amendment safe-guards of political association afforded to employees” to “independent contractors” ). See Amdt1.7.13.2 Conditions of Public Employment.
16: See Amdt1.7.9.1 Loyalty Oaths to Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.
17: See Amdt1.8.3.3 Character and Fitness and Evidentiary Disclosures.
18: Healy v. James, 408 U.S. 169, 186–87 (1972). However, the Court stated that the university could require applicants to affirm that they will comply with reasonable campus regulations. Id. at 193.
19: Lefkowitz v. Cunningham, 431 U.S. 801, 807–08 (1977) (holding that a state may not require a person to waive the person’s Fifth Amendment right against self-incrimination as a condition of holding a political party office); Aptheker v. Sec’y of State, 378 U.S. 500, 507 (1964) (holding that a state may not restrict the right to travel based on an individual’s membership in a particular association).