Hanging with the wrong crowd: Of gangs, terrorists, and the right of association

Supreme Court Review

Volumn 1999, Issue , 1999, Pages 203-251

  Cole, David ^a  

^a NONE

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EID: 0012970861     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1999.3109708     Document Type: Article

References (204)

1. Barenblatt v United States, 360 US 109, 150-51 (1959) (Black, J, dissenting).
2. See Roberts v United States Jaycees, 468 US 609, 617-23 (1984).
3. 119 S Ct 1849 (1999).
4. Id at 1862; id at 1864 (O'Connor concurring in part and concurring in judgment).
5. Reno v American-Arab Anti-Discrimination Comm., 119 S Ct 936 (1999).
6. Id at 947.
7. 391 US 367 (1968).
8. Brief Amicus Curiae of the United States in Shrink Missouri Government PAC v Nixon, No 98-963, 1998 US Briefs (LEXIS) 963, at *25 n 12.
9. 18 USC § 2339A; 8 USC § 1189(a); Humanitarian Law Project, Inc. v Reno, 9 F Supp 2d 1176 (CD Cal 1998) (upholding in part AEDPA provisions making it a crime to provide humanitarian support to lawful activities of designated "foreign terrorist organization"); Brief for the Appellees/Cross-Appellants in Humanitarian Law Project, Inc. v Reno, No 98-56062 (9th Cir pending), at 30-54.
10. See, e.g., NAACP v Alabama ex rel Patterson, 357 US 449 (1958); Bates v City of Little Rock, 361 US 516 (1960). As early as 1937, the Court invalidated the conviction of a man for participating in a meeting held under Communist Party auspices, but its decision rested on the right of assembly, not the right of association. De Jonge v Oregon, 299 US 353 (1937). NAACP v Alabama was the first time the Court explicity on the right of association.
11. See, e.g., NAACP v Alabama ex rel Patterson, 357 US 449 (1958); Bates v City of Little Rock, 361 US 516 (1960). As early as 1937, the Court invalidated the conviction of a man for participating in a meeting held under Communist Party auspices, but its decision rested on the right of assembly, not the right of association. De Jonge v Oregon, 299 US 353 (1937). NAACP v Alabama was the first time the Court explicity on the right of association.
12. See, e.g., NAACP v Alabama ex rel Patterson, 357 US 449 (1958); Bates v City of Little Rock, 361 US 516 (1960). As early as 1937, the Court invalidated the conviction of a man for participating in a meeting held under Communist Party auspices, but its decision rested on the right of assembly, not the right of association. De Jonge v Oregon, 299 US 353 (1937). NAACP v Alabama was the first time the Court explicity on the right of association.
13. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities); Keyishian v Board of Regents, 385 US 589, 606 (1967) (invalidating statute barring employment in state university system to Communist Party members ); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not join Communist Party; Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent over- throw of government, to require showing of "specific intent" to further group's illegal ends); Noto v United States, 367 US 290, 299-300 (1961) (same).
14. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities); Keyishian v Board of Regents, 385 US 589, 606 (1967) (invalidating statute barring employment in state university system to Communist Party members ); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not join Communist Party; Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent over- throw of government, to require showing of "specific intent" to further group's illegal ends); Noto v United States, 367 US 290, 299-300 (1961) (same).
15. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities); Keyishian v Board of Regents, 385 US 589, 606 (1967) (invalidating statute barring employment in state university system to Communist Party members ); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not join Communist Party; Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent over- throw of government, to require showing of "specific intent" to further group's illegal ends); Noto v United States, 367 US 290, 299-300 (1961) (same).
16. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities); Keyishian v Board of Regents, 385 US 589, 606 (1967) (invalidating statute barring employment in state university system to Communist Party members ); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not join Communist Party; Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent over-throw of government, to require showing of "specific intent" to further group's illegal ends); Noto v United States, 367 US 290, 299-300 (1961) (same).
17. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities); Keyishian v Board of Regents, 385 US 589, 606 (1967) (invalidating statute barring employment in state university system to Communist Party members ); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not join Communist Party; Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent over- throw of government, to require showing of "specific intent" to further group's illegal ends); Noto v United States, 367 US 290, 299-300 (1961) (same).
18. Abood v Detroit Bd of Educ., 431 US 209 (1977).
19. Buckley v Valeo, 424 US 1 (1974).
20. Roberts v United States Jaycees, 468 US 609 (1984); Runyon v McCrary, 427 US 160, 175- 76 (1976) (rejecting private school's assertion that right of association barred application of 42 USC § 1981 to its racially exclusive admission policy); Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting law firm's assertion of right association as defense to Title VII sex discrimination claim).
21. Roberts v United States Jaycees, 468 US 609 (1984); Runyon v McCrary, 427 US 160, 175-76 (1976) (rejecting private school's assertion that right of association barred application of 42 USC § 1981 to its racially exclusive admission policy); Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting law firm's assertion of right association as defense to Title VII sex discrimination claim).
22. Roberts v United States Jaycees, 468 US 609 (1984); Runyon v McCrary, 427 US 160, 175- 76 (1976) (rejecting private school's assertion that right of association barred application of 42 USC § 1981 to its racially exclusive admission policy); Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting law firm's assertion of right association as defense to Title VII sex discrimination claim).
23. Frank H. Easterbrook, Implicit and Explicit Rights of Assciation, 10 Harv J L & Pub Pol 91, 98 (1987).
24. Roberts v United States Jaycees, 468 US 609.
25. Id at 618 ("the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion") (emphasis added); Abood v Detroit Board of Education 431 US 209, 233 (1977) ("Our decisions establish with unmistakable clarity that the freedom of an individual to association for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments.") (emphasis added); Bates v City of Little Rock, 361 US at 522-23 (Constitution protects "freedom of association for the purpose of advancing ideas and airing grievances") (emphasis added).
26. Id at 618 ("the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion") (emphasis added); Abood v Detroit Board of Education 431 US 209, 233 (1977) ("Our decisions establish with unmistakable clarity that the freedom of an individual to association for the purpose of advancing beliefs and ideas is protected by the First and Fourteenth Amendments.") (emphasis added); Bates v City of Little Rock, 361 US at 522-23 (Constitution protects "freedom of association for the purpose of advancing ideas and airing grievances") (emphasis added).
27. Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995).
28. Roberts v United States Jaycees, 468 US 609 (1984); Board of Doctors of Rotary Int'l v Rotary Club of Duarte, 481 US 537 (1987); New York State Club Assn, Inc. v City of New York, 487 US 1 (1988).
29. Roberts v United States Jaycees, 468 US 609 (1984); Board of Doctors of Rotary Int'l v Rotary Club of Duarte, 481 US 537 (1987); New York State Club Assn, Inc. v City of New York, 487 US 1 (1988).
30. Roberts v United States Jaycees, 468 US 609 (1984); Board of Doctors of Rotary Int'l v Rotary Club of Duarte, 481 US 537 (1987); New York State Club Assn, Inc. v City of New York, 487 US 1 (1988).
31. Thomas I. Emerson, Freedom of Association and Freedom of Expression, 74 Yale L J 1, 24 (1964).
32. Roberts, 468 US at 618, 619 (internal citations omitted).
33. Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L J 624, 629 (1980).
34. 490 US 19, 25 (1989).
35. Morales, 119 S Ct at 1857.
36. See notes 8 and 9.
37. NAACP v Button, 371 US 415, 433 (1963) (because First Amendment "freedoms are delicate and vulnerable," and "need breathing space to survive, government may regulate in the area only with narrow specificity"); Reno v American Civil Liberties Union, 117 S Ct 2329, 2344-45 (1997).
38. NAACP v Button, 371 US 415, 433 (1963) (because First Amendment "freedoms are delicate and vulnerable," and "need breathing space to survive, government may regulate in the area only with narrow specificity"); Reno v American Civil Liberties Union, 117 S Ct 2329, 2344-45 (1997).
39. Brandenburg v Ohio, 395 US 444 (1969).
40. Miller v California, 413 US 15 (1973).
41. New York Times v Sullivan, 376 US 254 (1964).
42. Kenneth Karst has argued that: [a]lmost everything we do is expressive in one way or another, and thus to say that the First Amendment is a generalized presumptive guarantee of liberty to do anything that has expressive aspects would be much like saying that the constitutional right of privacy guarantees "the right to be let alone." The First Amendment would, in short, be stretched to cover all our constitutional freedoms. Kenneth Karst, 89 Yale L J at 654 (cited in note 22).
43. See, e.g., Konigsberg v State Bar, 366 US 36, 60-76 (1961) (Black dissenting); Barenblatt v United States, 360 US 109, 134, 140-53 (1958) (Black dissenting); Hugo Black, The Bill of Rights, 35 NYU L Rev 865, 874-81 (1960).
44. See, e.g., Konigsberg v State Bar, 366 US 36, 60-76 (1961) (Black dissenting); Barenblatt v United States, 360 US 109, 134, 140-53 (1958) (Black dissenting); Hugo Black, The Bill of Rights, 35 NYU L Rev 865, 874-81 (1960).
45. See, e.g., Konigsberg v State Bar, 366 US 36, 60-76 (1961) (Black dissenting); Barenblatt v United States, 360 US 109, 134, 140-53 (1958) (Black dissenting); Hugo Black, The Bill of Rights, 35 NYU L Rev 865, 874-81 (1960).
46. Thomas I. Emerson, The System of Freedom of Expression 8-9 (1970).
47. Louis Henkin, Foreword: On Drawing Lines, 82 Harv L Rev 63, 79-80 (1968).
48. John Hart Ely, Flag Desecration: A Case Study in the Rules of Categorization and Balancing in First Amendment Analysis, 88 Harv L Rev 1482, 1494-96 (1975).
49. This is not to suggest that no distinctions can be made between regulation of the associational and the nonassociational aspects of conduct. As I will maintain later, courts can and should ask whether the government's regulation of conduct derives from the associational character of the conduct, or derives from an interest in regulating the conduct irrespective of its associational character. But that is very different from asking whether a given action is conduct or association, when it will almost always assuredly be both.
50. Dallas v Stanglin, 490 US 19, 25 (1989); City of Chicago v Morales, 119 S Ct at 1857.
51. Dallas v Stanglin, 490 US 19, 25 (1989); City of Chicago v Morales, 119 S Ct at 1857.
52. Racketeer Influenced and Corrupt Organizations Act, 18 USC §§ 1961-68.
53. See, e.g., Dennis v United States, 341 US 494 (1951); Communist Party v Subversive Activities Control Bd., 367 US 1 (1961).
54. See, e.g., Dennis v United States, 341 US 494 (1951); Communist Party v Subversive Activities Control Bd., 367 US 1 (1961).
55. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities absent showing of "specific intent"); Keyishian v Board of Regents, 385 US 589, 606 (1967) ("[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis" for barring employment in state university system to Communist Party members); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not to join Communist Party because "[a] law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms"); Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent overthrow of government to require showing of "specific intent"); Noto v United States, 367 US 290, 299-300 (1961) (First Amendment bars punishment of "one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence").
56. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities absent showing of "specific intent"); Keyishian v Board of Regents, 385 US 589, 606 (1967) ("[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis" for barring employment in state university system to Communist Party members); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not to join Communist Party because "[a] law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms"); Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent overthrow of government to require showing of "specific intent"); Noto v United States, 367 US 290, 299-300 (1961) (First Amendment bars punishment of "one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence").
57. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities absent showing of "specific intent"); Keyishian v Board of Regents, 385 US 589, 606 (1967) ("[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis" for barring employment in state university system to Communist Party members); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not to join Communist Party because "[a] law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms"); Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent overthrow of government to require showing of "specific intent"); Noto v United States, 367 US 290, 299-300 (1961) (First Amendment bars punishment of "one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence").
58. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities absent showing of "specific intent"); Keyishian v Board of Regents, 385 US 589, 606 (1967) ("[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis" for barring employment in state university system to Communist Party members); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not to join Communist Party because "[a] law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms"); Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent overthrow of government to require showing of "specific intent"); Noto v United States, 367 US 290, 299-300 (1961) (First Amendment bars punishment of "one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence").
59. See United States v Robel, 389 US 258, 262 (1967) (invalidating ban on Communist Party members working in defense facilities absent showing of "specific intent"); Keyishian v Board of Regents, 385 US 589, 606 (1967) ("[m]ere knowing membership without a specific intent to further the unlawful aims of an organization is not a constitutionally adequate basis" for barring employment in state university system to Communist Party members); Elfbrandt v Russell, 384 US 11, 19 (1966) (invalidating oath requiring state employees not to join Communist Party because "[a] law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms"); Scales v United States, 367 US 203, 221-22 (1961) (construing Smith Act, which barred membership in organization advocating violent overthrow of government to require showing of "specific intent"); Noto v United States, 367 US 290, 299-300 (1961) (First Amendment bars punishment of "one in sympathy with the legitimate aims of [the Communist Party], but not specifically intending to accomplish them by resort to violence").
60. Scales 367 US at 224-25: Long before Scales, Justice Murphy made the same point, concurring in Bridges v Wixon, 326 US 135, 163 (1945): The doctrine of personal guilt is one of the most fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process of law. . . . It prevents the persecution of the innocent for the beliefs and actions of others.
61. Scales 367 US at 224-25: Long before Scales, Justice Murphy made the same point, concurring in Bridges v Wixon, 326 US 135, 163 (1945): The doctrine of personal guilt is one of the most fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process of law. . . . It prevents the persecution of the innocent for the beliefs and actions of others.
62. Scales, 367 US at 229.
63. Id at 221-30.
64. Id at 229 (quoting Noto v United States, 367 US at 299).
65. Elfbrandt v Russell, 384 US 11, 19 (1966).
66. Note, Civil Disabilities and the First Amendment, 78 Yale L J 842 (1969).
67. The Court has continued to adhere to the prohibition on guilt by association, and to extend it to noncriminal settings. In Healy v James, 408 US 169 (1972), the Court held that a public university could not deny use of meeting rooms to a student group on the ground that it was affiliated with a national organization, Students for a Democratic Society that had engaged in illegal violent activity. The Court stated that "[i]t has been established that 'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights. " Id at 186 (quoting United States v Robel, 389 US at 265). Similarly, in NAACP v Claiborne Hardware, 458 US 886 (1982), the Court held that civil liability could not constitutionally be imposed on leaders of the NAACP on the ground that a boycott led by the NAACP had resulted in violence, absent evidence that the leaders specifically intended the violence. The Court stated that "guilt by association is a philosophy alien to the traditions of a free society and the First Amendment itself." Id at 932 (internal citations omitted).
68. The Court has continued to adhere to the prohibition on guilt by association, and to extend it to noncriminal settings. In Healy v James, 408 US 169 (1972), the Court held that a public university could not deny use of meeting rooms to a student group on the ground that it was affiliated with a national organization, Students for a Democratic Society that had engaged in illegal violent activity. The Court stated that "[i]t has been established that 'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights. " Id at 186 (quoting United States v Robel, 389 US at 265). Similarly, in NAACP v Claiborne Hardware, 458 US 886 (1982), the Court held that civil liability could not constitutionally be imposed on leaders of the NAACP on the ground that a boycott led by the NAACP had resulted in violence, absent evidence that the leaders specifically intended the violence. The Court stated that "guilt by association is a philosophy alien to the traditions of a free society and the First Amendment itself." Id at 932 (internal citations omitted).
69. The Court has continued to adhere to the prohibition on guilt by association, and to extend it to noncriminal settings. In Healy v James, 408 US 169 (1972), the Court held that a public university could not deny use of meeting rooms to a student group on the ground that it was affiliated with a national organization, Students for a Democratic Society that had engaged in illegal violent activity. The Court stated that "[i]t has been established that 'guilt by association alone, without [establishing] that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights. " Id at 186 (quoting United States v Robel, 389 US at 265). Similarly, in NAACP v Claiborne Hardware, 458 US 886 (1982), the Court held that civil liability could not constitutionally be imposed on leaders of the NAACP on the ground that a boycott led by the NAACP had resulted in violence, absent evidence that the leaders specifically intended the violence. The Court stated that "guilt by association is a philosophy alien to the traditions of a free society and the First Amendment itself." Id at 932 (internal citations omitted).
70. The Chicago ordinance provided in relevant part: Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such person to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. Gang Congregation Ordinance, Chicago Municipal Code § 8-4-015(a), quoted in Morales, 119 S Ct at 1854 n 2. The ordinance defines "loiter" to mean "to remain in any one place with no apparent purpose." Id at § (c)(1). And it defines "criminal street gang" to mean any group "having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." Id at § (c)(2).
71. Morales, 119 S Ct at 1857.
72. Id at 1862.
73. Id at 1865 (O'Connor concurring); see also id at 1864.
74. Id at 1879 (Scalia dissenting).
75. Id at 1885 (Thomas dissenting) (challenging logic of suggestion that ordinance might be cured by limiting it to gang members).
76. Terence R Boga, Turf Wars: Street Gangs, Local Governments, and the Battle for Public Space, 29 Harv CR-CL L Rev 477, 487-88 (1994); Jeffrey J. Mayer, Individual Moral Responsibility and the Crimmalization of Youth Gangs, 28 Wake Forest L Rev 943, 949 (1993) ("Gangs are, and always have been, groups of youths formed for many of the same motives that youths have always organized themselves - friendship and social identity as well as the pursuit of delinquent or criminal activities");
77. Terence R Boga, Turf Wars: Street Gangs, Local Governments, and the Battle for Public Space, 29 Harv CR-CL L Rev 477, 487-88 (1994); Jeffrey J. Mayer, Individual Moral Responsibility and the Crimmalization of Youth Gangs, 28 Wake Forest L Rev 943, 949 (1993) ("Gangs are, and always have been, groups of youths formed for many of the same motives that youths have always organized themselves - friendship and social identity as well as the pursuit of delinquent or criminal activities");
78. Felix M. Padilla, The Gang as an American Enterprise 9-10, 91-117 (1992).
79. See e g., Don Terry, Chicago Gangs, Extending Turf, Turn to Politics, NY Times (Oct 25, 1993) at A12 (gang involvement with health care, education, voter registration, and supporting of candidates); Gang Summit Ends with Call for Jobs, LA Times (May 3, 1993), at A13 (noting gang summit policy positions on employment and civil rights); George Papa- John, Gangs Aren't Rookies in City Politics, Chicago Tribune (March 31, 1995), sec 1 at 1.
80. See e g., Don Terry, Chicago Gangs, Extending Turf, Turn to Politics, NY Times (Oct 25, 1993) at A12 (gang involvement with health care, education, voter registration, and supporting of candidates); Gang Summit Ends with Call for Jobs, LA Times (May 3, 1993), at A13 (noting gang summit policy positions on employment and civil rights); George Papa- John, Gangs Aren't Rookies in City Politics, Chicago Tribune (March 31, 1995), sec 1 at 1.
81. See e g., Don Terry, Chicago Gangs, Extending Turf, Turn to Politics, NY Times (Oct 25, 1993) at A12 (gang involvement with health care, education, voter registration, and supporting of candidates); Gang Summit Ends with Call for Jobs, LA Times (May 3, 1993), at A13 (noting gang summit policy positions on employment and civil rights); George Papa-John, Gangs Aren't Rookies in City Politics, Chicago Tribune (March 31, 1995), sec 1 at 1.
82. 389 US 258 (1967).
83. 119 S Ct 936 (1999).
84. American-Arab Anti-Discrimination Comm. v Reno, 70 F3d 1045 (9th Cir 1995), 119 F3d 1367 (9th Cir 1998), rev'd, 119 S Ct 936 (1999).
85. American-Arab Anti-Discrimination Comm. v Reno, 70 F3d 1045 (9th Cir 1995), 119 F3d 1367 (9th Cir 1998), rev'd, 119 S Ct 936 (1999).
86. American-Arab Anti-Discrimination Comm. v Reno, 70 F3d 1045 (9th Cir 1995), 119 F3d 1367 (9th Cir 1998), rev'd, 119 S Ct 936 (1999).
87. See Gerald L. Neuman, Terrorism, Selective Deportation and the First Amendment after Reno v AADC, forthcoming Georgetown Immig L J (2000); David Cole, Damage Control? A Comment on Professor Neuman's Reading of Reno v AADC, forthcoming Georgetown Immig L J (2000).
88. See Gerald L. Neuman, Terrorism, Selective Deportation and the First Amendment after Reno v AADC, forthcoming Georgetown Immig L J (2000); David Cole, Damage Control? A Comment on Professor Neuman's Reading of Reno v AADC, forthcoming Georgetown Immig L J (2000).
89. 119 S Ct at 946-47.
90. Justice Stevens, concurring, implied that the guilt-by-association principle was not triggered here because the government was not "punishing" innocent members, but merely selecting whom to deport among otherwise deportable aliens. 119 S Ct at 952 (Stevens concurring in part). But that view requires a rejection of the legion of cases applying the guilt-by-association principle to the imposition of civil disabilities and civil liabilities. See notes 45 and 46. If it violates guilt by association to deny a student group access to university meeting rooms on the basis of their association, surely it violates guilt by association to target an alien for deportation on that basis. On Justice Stevens's view, it would presumably be constitutional for the Internal Revenue Service to announce a policy of targeting for tax fraud investigations and prosecutions members of the Democratic Party, because it would not be "punishing" innocent members, but only those guilty of tax fraud.
91. Elfbrandt v Russell, 384 US at 19.
92. NAACP v Claiborne Hardware, 458 US at 932 (internal citations omitted).
93. 361 US 516 (1960).
94. The Court stated: Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry - a government dedicated to the establishment of justice and the preservation of liberty. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. Id at 522 (internal citations omitted).
95. See, e.g., NAACP v Claiborne Hardware, 458 US at 908; NAACP v Alabama, 357 US at 460.
96. See, e.g., NAACP v Claiborne Hardware, 458 US at 908; NAACP v Alabama, 357 US at 460.
97. Katz v United States, 389 US 347 (1967).
98. As Glenn Abernathy has argued: Freedom to assemble need not be artificially narrowed to encompass only the physical assemblage in a park or meeting hall. It can justifiably be extended to include as well those persons who are joined together through organizational M. Glenn Abernathy, The Right of Assembly and Association 173 (2d ed 1981)
99. 1 Annals of Congress 731-32 (1789).
100. Id.
101. Id.
102. Id.
103. 92 US 542, 552 (1876). The Court elaborated: The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, none of the attributes of citizenship under a free government. . . . It is found wherever civilization exists. Id at 551.
104. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Supreme Court Review 245.
105. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Supreme Court Review 245.
106. 299 US 353, 364-65 (1876).
107. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am Bar Found Res J 521.
108. Arthur M. Schlesinger, Paths to the Present 23 (1949).
109. 1 Alexis de Tocqueville, Democracy in America 194-95 (Bradley ed 1948) (cited below as "Tocqueville").
110. Laurence H. Tribe, American Constitutional Law 1313 (2d ed 1988).
111. " See Chafee, Book Review, 62 Harv L Rev 891, 899-900 (1949) (arguing that the most serious weakness in Meiklejohn's defense of political speech is the difficulty of drawing lines between public and private speech); Harry Kalven, The Metaphysics of the Law of Obscenity, 1960 Supreme Court Review 1, 15-16 (same).
112. " See Chafee, Book Review, 62 Harv L Rev 891, 899-900 (1949) (arguing that the most serious weakness in Meiklejohn's defense of political speech is the difficulty of drawing lines between public and private speech); Harry Kalven, The Metaphysics of the Law of Obscenity, 1960 Supreme Court Review 1, 15-16 (same).
113. Martin Redish, Freedom of Expression: A Critical Analysis 11 (1984) (arguing that protection of free speech serves "individual self-realization," encompassing both an individual's development of his or her abilities, and an individual's control over his or her own destiny by making "life-affecting decisions"). Thomas Emerson, The System of Freedom of Expression 6 (1970) (speech is necessary to "assuring individual self-fulfillment").
114. Martin Redish, Freedom of Expression: A Critical Analysis 11 (1984) (arguing that protection of free speech serves "individual self-realization," encompassing both an individual's development of his or her abilities, and an individual's control over his or her own destiny by making "life-affecting decisions"). Thomas Emerson, The System of Freedom of Expression 6 (1970) (speech is necessary to "assuring individual self-fulfillment").
115. Tocqueville at 196.
116. See for example, Robert Bellah, Richard Madsen, William Sullivan, Ann Swidler, and Steven Tiptson, Habits of the Heart (1984); Ernest Gellner, Conditions of Liberty: Civil Society and its Rivals (1994); Robert Putnam, Bowling Alone Revisited, 5 Resp Comm 18 (Spring 1995); Michael Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996).
117. See for example, Robert Bellah, Richard Madsen, William Sullivan, Ann Swidler, and Steven Tiptson, Habits of the Heart (1984); Ernest Gellner, Conditions of Liberty: Civil Society and its Rivals (1994); Robert Putnam, Bowling Alone Revisited, 5 Resp Comm 18 (Spring 1995); Michael Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996).
118. See for example, Robert Bellah, Richard Madsen, William Sullivan, Ann Swidler, and Steven Tiptson, Habits of the Heart (1984); Ernest Gellner, Conditions of Liberty: Civil Society and its Rivals (1994); Robert Putnam, Bowling Alone Revisited, 5 Resp Comm 18 (Spring 1995); Michael Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996).
119. See for example, Robert Bellah, Richard Madsen, William Sullivan, Ann Swidler, and Steven Tiptson, Habits of the Heart (1984); Ernest Gellner, Conditions of Liberty: Civil Society and its Rivals (1994); Robert Putnam, Bowling Alone Revisited, 5 Resp Comm 18 (Spring 1995); Michael Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996).
120. Amy Gutmann, Freedom of Association: An Introductory Essay, in Amy Gutmann, ed, Freedom of Association 3-4 (1998).
121. Whitney v California, 274 US 357, 375 (1927) (Brandeis concurring) ("the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies"); Thomas Emerson, The System of Freedom of Expression 7 (1970) (same).
122. Whitney v California, 274 US 357, 375 (1927) (Brandeis concurring) ("the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies"); Thomas Emerson, The System of Freedom of Expression 7 (1970) (same).
123. 299 US 353 (1937).
124. Id at 364-65.
125. Tocqueville at 202-03.
126. See George Kateb, The Value of Association, in Amy Gutmann, ed, Freedom of Association 35 (1998).
127. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv L Rev 1 (1959); Robert Bork, Civil Rights - A Challenge, New Republic (Aug 31, 1963).
128. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv L Rev 1 (1959); Robert Bork, Civil Rights - A Challenge, New Republic (Aug 31, 1963).
129. See Charles Lawrence, Mari Matsuda, et al, Words That Wound (1993).
130. See text at notes 31-34.
131. Purpose as used here is distinct from motive. It refers to the purposes evident from the face of the statute and the interests asserted by the government, but does not authorize an inquiry into the motives of legislators. United States v O'Brien, 391 US 367, 382-84 (1968); John Hart Ely, 88 Harv L Rev at 1496-97 (cited in note 34).
132. Purpose as used here is distinct from motive. It refers to the purposes evident from the face of the statute and the interests asserted by the government, but does not authorize an inquiry into the motives of legislators. United States v O'Brien, 391 US 367, 382-84 (1968); John Hart Ely, 88 Harv L Rev at 1496-97 (cited in note 34).
133. Texas v Johnson, 491 US 397, 406 (1989).
134. 491 US 397.
135. 391 US 367 (1968).
136. O'Brien states that "a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v O'Brien, 391 US at 377. This test sounds more stringent than it really is. In practice, the application of O'Brien nearly always leads to a decision upholding the statute.
137. 283 US 359 (1931).
138. Texas v Johnson, 491 US at 407 (quoting O'Brien, 391 US at 377).
139. Texas v Johnson, 491 US at 407 (quoting O'Brien, 391 US at 377).
140. See e.g., Burson v Freeman, 504 US 191 (1992) (upholding law prohibiting solicitation of voters within 100 feet of polling place); Buckley v Valeo, 424 US 1 (1976) (upholding limits on contributions to candidates for federal office).
141. See e.g., Burson v Freeman, 504 US 191 (1992) (upholding law prohibiting solicitation of voters within 100 feet of polling place); Buckley v Valeo, 424 US 1 (1976) (upholding limits on contributions to candidates for federal office).
142. See R.A.V. v City of St. Paul, 505 US 377, 382 (1992); Boos v Barry, 485 US 312, 321 (1988).
143. See R.A.V. v City of St. Paul, 505 US 377, 382 (1992); Boos v Barry, 485 US 312, 321 (1988).
144. Brandenburg v Ohio, 395 US 444 (1969).
145. Texas v Johnson, 491 US at 409; Gooding v Wilson, 405 US 518 (1972);
146. Texas v Johnson, 491 US at 409; Gooding v Wilson, 405 US 518 (1972);
147. Cohen v California, 403 US 15, 20 (1971).
148. See e.g., Miller v California, 413 US 15 (1973) (obscenity); Central Hudson Gas v Public Service Comm'n, 447 US 557 (1980) (commercial speech); Denver Area Educational Telecommunications Consortium, Inc. v FCC, 116 S Ct 2374 (1996) (cable television).
149. See e.g., Miller v California, 413 US 15 (1973) (obscenity); Central Hudson Gas v Public Service Comm'n, 447 US 557 (1980) (commercial speech); Denver Area Educational Telecommunications Consortium, Inc. v FCC, 116 S Ct 2374 (1996) (cable television).
150. See e.g., Miller v California, 413 US 15 (1973) (obscenity); Central Hudson Gas v Public Service Comm'n, 447 US 557 (1980) (commercial speech); Denver Area Educational Telecommunications Consortium, Inc. v FCC, 116 S Ct 2374 (1996) (cable television).
151. See R.A.V. v City of St. Paul, 505 US at 386.
152. NAACP v Alabama, 357 US at 461.
153. Elfbrandt v Russell, 384 US at 19.
154. On this view, constitutional protection is not limited to expressive and intimate association, but the presence of an expressive or intimate element in the governmental purpose may trigger additional constitutional concerns. A regulation that targets association because of its expressive nature, like a regulation that targets any conduct because of its expressive nature, would be treated as a regulation of speech, wholly apart from the right of association. And, similarly, a regulation targeted at intimate association would raise privacy concerns in addition to associational issues. Thus, the regulation of expressive and intimate association may raise additional constitutional objections, but the right of association is implicated simply by the targeting of association, whether or not the association targeted is expressive or intimate.
155. Dallas v Stanglin, 490 US 19, 25 (1989).
156. Id at 24-25.
157. Indeed, even accepting the Court's limitation of association to intimate and expressive associations, its reasoning is unpersuasive. Many intimate associations are initiated on the floors of dance halls. Dance itself is a traditional form of expression. And the exchange of ideas that takes place in a social setting may be just as valuable from a speech perspective as that which takes place on the floor of a political convention or academic conference.
158. Compare NAACP v Alabama, 357 US at 460-61 ("it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters") with United States v Cruikshank, 92 US at 552 (noting that the right of the people to assemble "for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by, the United States").
159. Compare NAACP v Alabama, 357 US at 460-61 ("it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters") with United States v Cruikshank, 92 US at 552 (noting that the right of the people to assemble "for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by, the United States").
160. See, e.g., Ward v Rock Against Racism, 491 US 781, 791 (1989); see also Roberts v United States Jaycees, 468 US at 634 (O'Connor concurring) (noting that expessive association may be subject to content-neutral time, place, and manner restrictions).
161. See, e.g., Ward v Rock Against Racism, 491 US 781, 791 (1989); see also Roberts v United States Jaycees, 468 US at 634 (O'Connor concurring) (noting that expessive association may be subject to content-neutral time, place, and manner restrictions).
162. See e.g., William P. Marshall, Discrimination and the Right of Association, 81 Nw U L Rev 68 (1987); Douglas Linder, Freedom of Association After Roberts v United States Jaycees 82 Mich L Rev 1878 (1984). George Kateb, The Value of Association, in Amy Gutmann ed, Freedom of Association 35 (1998); Nancy L. Rosenblum, Compelled Association: Public Standing Self-Respect and the Dynamics of Exclusion, in Amy Gutmann, ed, Freedom of Association 75 (1998).
163. See e.g., William P. Marshall, Discrimination and the Right of Association, 81 Nw U L Rev 68 (1987); Douglas Linder, Freedom of Association After Roberts v United States Jaycees 82 Mich L Rev 1878 (1984). George Kateb, The Value of Association, in Amy Gutmann ed, Freedom of Association 35 (1998); Nancy L. Rosenblum, Compelled Association: Public Standing Self-Respect and the Dynamics of Exclusion, in Amy Gutmann, ed, Freedom of Association 75 (1998).
164. See e.g., William P. Marshall, Discrimination and the Right of Association, 81 Nw U L Rev 68 (1987); Douglas Linder, Freedom of Association After Roberts v United States Jaycees 82 Mich L Rev 1878 (1984). George Kateb, The Value of Association, in Amy Gutmann ed, Freedom of Association 35 (1998); Nancy L. Rosenblum, Compelled Association: Public Standing Self-Respect and the Dynamics of Exclusion, in Amy Gutmann, ed, Freedom of Association 75 (1998).
165. See e.g., William P. Marshall, Discrimination and the Right of Association, 81 Nw U L Rev 68 (1987); Douglas Linder, Freedom of Association After Roberts v United States Jaycees 82 Mich L Rev 1878 (1984). George Kateb, The Value of Association, in Amy Gutmann ed, Freedom of Association 35 (1998); Nancy L. Rosenblum, Compelled Association: Public Standing Self-Respect and the Dynamics of Exclusion, in Amy Gutmann, ed, Freedom of Association 75 (1998).
166. Roberts, 468 US at 623.
167. Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting freedom-of-association objection to application of Tide VII sex discrimination prohibition to law firm); Runyon v McCrary 427 US 160, 175-76 (1976) (rejecting freedom-of-association objection to application of 42 USC § 1981 prohibiting discrimination in contracting to racially discriminatory private schools); Railway Mail Assn v Corsi, 326 US 88, 93-94 (1945) (rejecting freedom-of- association objection to New York antidiscrimination provision as applied to labor union).
168. Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting freedom-of-association objection to application of Tide VII sex discrimination prohibition to law firm); Runyon v McCrary 427 US 160, 175-76 (1976) (rejecting freedom-of-association objection to application of 42 USC § 1981 prohibiting discrimination in contracting to racially discriminatory private schools); Railway Mail Assn v Corsi, 326 US 88, 93-94 (1945) (rejecting freedom-of- association objection to New York antidiscrimination provision as applied to labor union).
169. Hishon v King & Spalding, 467 US 69, 78 (1984) (rejecting freedom-of-association objection to application of Tide VII sex discrimination prohibition to law firm); Runyon v McCrary 427 US 160, 175-76 (1976) (rejecting freedom-of-association objection to application of 42 USC § 1981 prohibiting discrimination in contracting to racially discriminatory private schools); Railway Mail Assn v Corsi, 326 US 88, 93-94 (1945) (rejecting freedom-of-association objection to New York antidiscrimination provision as applied to labor union).
170. 326 US at 94.
171. Id.
172. Runyon v McCrary, 427 US at 176 (quoting Norwood v Harrison, 413 US 455, 470 (1973)).
173. Runyon v McCrary, 427 US at 176 (quoting Norwood v Harrison, 413 US 455, 470 (1973)).
174. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv L Rev 1 (1959).
175. Justice O'Connor's concurrence in Roberts may come closer to confronting the issue, although her answer is also not ultimately satisfactory. She insists that associational rights are at stake but suggests that associations organized essentially for commercial purposes are part of the public marketplace and thus more susceptible to regulation than noncommercial organizations. While the line between commercial and noncommercial is not an easy one to draw it at least seeks to identify a public-private divide. The world of commerce is an inherentiy public and deeply regulated world, and government has a strong interest in ensuring nondiscriminatory access to that world, much as it has a strong interest in ensuring nondiscriminatory access to the vote. In both instances, that interest may justify the regulation of certain private entities that play a critical role in regulating such access. See Terry v Adams, 345 US 461 (1953) (invalidating as violation of the Fifteenth Amendment white-only preprimary election of private Democratic club, because of role it played as step toward general public election); Smith v Allwright, 321 US 649 (1944) (same). But it does not follow that nondiscrimination principles are not also important in noncommercial settings, such as private schools
176. Justice O'Connor's concurrence in Roberts may come closer to confronting the issue, although her answer is also not ultimately satisfactory. She insists that associational rights are at stake but suggests that associations organized essentially for commercial purposes are part of the public marketplace and thus more susceptible to regulation than noncommercial organizations. While the line between commercial and noncommercial is not an easy one to draw it at least seeks to identify a public-private divide. The world of commerce is an inherentiy public and deeply regulated world, and government has a strong interest in ensuring nondiscriminatory access to that world, much as it has a strong interest in ensuring nondiscriminatory access to the vote. In both instances, that interest may justify the regulation of certain private entities that play a critical role in regulating such access. See Terry v Adams, 345 US 461 (1953) (invalidating as violation of the Fifteenth Amendment white- only preprimary election of private Democratic club, because of role it played as step toward general public election); Smith v Allwright, 321 US 649 (1944) (same). But it does not follow that nondiscrimination principles are not also important in noncommercial settings, such as private schools
177. 68 USLW 4102 (US Jan 24, 2000).
178. 424 US 1 (1976).
179. Brief Amicus Curiae of the United States in Nixon v Shrink Missouri Government PAC, No 98-963 (S Ct), 1998 US Briefs (LEXIS) 963, *25 n 12.
180. See Buckley v Valeo, 424 US at 16-18 (discussing and rejecting court of appeals's reliance on O'Brien).
181. 68 USLW at 4104-05. The Court did suggest that contributions limits are subject to somewhat less rigorous scrutiny than expenditure limits, but nonetheless demanded that contribution limits be "'closely drawn' to match a 'sufficiently important interest.'" Id at 4105 (quoting Buckley v Valeo, 424 US at 30). Moreover, even this slightly less stringent scrutiny was justified by the fact that the regulation only placed a cap on, and did not prohibit altogether, contributions.
182. 68 USLW at 4104-05. The Court did suggest that contributions limits are subject to somewhat less rigorous scrutiny than expenditure limits, but nonetheless demanded that contribution limits be "'closely drawn' to match a 'sufficiently important interest.'" Id at 4105 (quoting Buckley v Valeo, 424 US at 30). Moreover, even this slightly less stringent scrutiny was justified by the fact that the regulation only placed a cap on, and did not prohibit altogether, contributions.
183. Buckley v Valeo, 424 US at 16-17, 44-45; see also 68 USLW at 4104.
184. Buckley v Valeo, 424 US at 16-17, 44-45; see also 68 USLW at 4104.
185. Id at 17.
186. Pub L No 104-132, 110 Stat 1214, §§ 301-02 (1996), codified at 8 USC § 1189 and 18 USC § 2339A.
187. l29 "Material support or resources" is broadly defined as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." 18 USC § 2339A(b).
188. Under 8 USC § 1189(a)(1), "[t]he Secretary is authorized to designate an organization as a foreign terrorist organization . . . if the Secretary finds that - (a) the organization is a foreign organization; (b) the organization engages in terrorist activity (as defined at [8 USC § 1182(a)(3)(B)]); and (c) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States," Id. The term "terrorist activity" is broadly defined in 8 USC § 1182(a)(3)(B) to include, inter alia, the unlawful use of, or threat to use, an explosive or firearm against person or property unless for mere personal monetary gain. "National security" is broadly defined in 8 USC § 1189(c)(2) to mean "national defense, foreign relations, or economic interests of the United States " Thus the Secretary has broad discretion to designate any foreign group that has used or has threatened to use force, and whose activities the Secretary deems to be contrary to our national defense, foreign relations, or economic interests.
189. See 18 USC § 2339A (1995) (making it a crime to provide material support or resources to any organization or individual for the purpose of furthering a comprehensive list of specified terrorist crimes, such as hostage taking and the killing of foreign officials).
190. Brief for the Appellees/Cross-Appellants in Humanitarian Law Project v Reno, No 98-56062 (9th Cir pending), at 30-54.
191. Buckley v Valeo, 424 US at 19.
192. Id at 65-66 (quoting NAACP v Alabama, 357 US at 460).
193. Humanitarian Law Project, Inc. v Reno, 9 F Supp 2d 1176 (CD Cal 1998), appeal pending (9th Cir). The district court struck down bans on the provision of "training" and "personnel" to foreign terrorist groups as unconstitutionally vague, but upheld the remainder of the challenged statute.
194. 9 F Supp 2d at 1188.
195. Act of September 23, 1950, Ch 1024, Title I, § 2, 64 Stat 987 (repealed 1993) (originally codified at 50 USC § 781).
196. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the- board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
197. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the- board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
198. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the- board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
199. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the- board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
200. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the- board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
201. See, for example, Regan v Wald, 468 US 222 (1984) (upholding restriction on travel to Cuba); Zemel v Rusk, 381 US 1 (1965) (same). The Supreme Court has consistently struck down travel laws that target association with foreign political organization. Thus, in Regan v Wald, the Court expressly distinguished two prior decisions, Aptheker v Secretary of State, 378 US 500 (1964), and Kent v Dulles, 357 US 116 (1958), in which it had invalidated decisions to deny passport to members of the Communist Party. As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passport on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba," Regan, 468 US at 241. In Regan and Zemel, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because the were "across-the-board restriction[s]" not targeted at association with a political group. 468 US at 241. By contrast, AEDPA does not impose any across-the-board restriction, but selectively criminalizes "material support" only when done in association with particular political groups. As a nation, our gevernment routinely engages in nation-nation diplomacy, and must often take action specific to certain that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations.
202. United States v Cruikshank, 92 US at 552.
203. NAACP v Claiborne Hardware, 458 US at 933 n 80 (quoting 1 Alexis de Tocqueville, Democracy in America 203 (P. Bradley ed 1954)).
204. NAACP v Claiborne Hardware, 458 US at 933 n 80 (quoting 1 Alexis de Tocqueville, Democracy in America 203 (P. Bradley ed 1954)).