Mirror of Justice

Over at Professor Balkin's blog, Ian Ayres and Jennifer Gerarda Brown have a post up called "Judge Alito, the Boy Scouts, and Associational Fraud."   They comment on the questions asked, and answers given, during Judge Alito's confirmation hearings concerning "Concerned Alumni of Princeton" and articles in the CAP's magazine that "expressed sexist and racist views of Princeton’s changing demographics."  And, they suggest that just as Judge Alito -- "like the Inspector in Casablanca" -- was "shocked to learn of CAP's . . . racist and sexist policies," many were "shocked to learn" -- after the Court's decision in Boy Scouts of America v. Dale -- that "their beloved Boy Scouts had taken an anti-gay policy."

They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America.

This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.

Having identified this phenomenon -- i.e., "associational fraud" -- Ayres and Brown continue:

How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them.

But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join.

These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements.

Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group.

But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.

Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.

Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.

The Ayres / Brown proposal is intriguing and provocative, but is it really one that we'd want to endorse?  For starters, I'm not sure about the premise that "[g]overnment has a constitutional interest in promoting informed association," if "constitutional interest" means "an interest that can justify a regulation, like the ones proposed, that burdens individuals' expressive-association rights or the rights of expressive associations."  I suppose it would be entirely legitimate to apply generally applicable anti-fraud laws to "expressive associations," as to everyone else, but I'm not so sure about the idea that government may, in effect, compel speech by associations -- that is, require them to state their positions on matters thought by the government to implicate "fundamental state policies" in order to make sure individuals' decisions-to-associate-expressively are, in the government's view, "fully informed."

Now, it seems right to say that "[t]he freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining."  The trick, I guess, is distinguishing "duping" from "not stating explicitly or anticipating accurately every position that the association will take, going forward, particularly in response to coercive regulation." 

As for the writers' final claim --  i.e., that "[i]t’s reasonable for a state to insist that organizations taking contrary positions [to fundamental state policies] disclose their true colors to potential members before people join up":  It is not (yet) clear to me that an association should be required to "disclose [its] true colors", if this means "spell out explicitly, with the clarity demanded by the government, every position they do profess, or will profess to hold in future litigation."

I suppose a lot of this comes down to what we think the "freedom of association" is and is for.  My own view, which might account for some of my hesitation about the Ayres / Brown proposal, is one that tends to emphasize the "structural" role of associations, rather than their function as vehicles for individuals' expression.  In any event, I'd appreciate others' reactions to, and thoughts about, their post.