II. “Guilt by Association” Through the Eyes of the Mid-Century Civil Libertarians: Pfeffer, Cushman, Konvitz, Commager, and Chafee

The problem of “guilt by association” was a major theme of civil libertarian scholars writing in the middle years of the twentieth century. Indeed, as they saw it, it was a problem that had occasioned the invention of a new constitutional right. Far from denying the right's newness—a requirement in our later, more conservative age—mid-century civil libertarians openly trumpeted, and celebrated, free association's novelty. “The First Amendment does not mention the right of association,” Leo Pfeffer explained in his chapter on petition, assembly, and association rights in his book The Liberties of an American (1956):

Although contemporary conservative and communitarian critics of the mid-twentieth-century “rights revolution” commonly denounce the hyper-individualism of the mid-century civil libertarians, Pfeffer, for one, cited the new association right not as an indication of a trend toward hyper-individualism, but as a sign of a movement toward the group-orientation of modern society.Footnote ¹⁸ He explained:

Along these lines, “When … the Supreme Court in Hague v. CIO [1939] dismissed the companion action of the American Civil Liberties Union (which too had been denied a permit to hold a public meeting) on the ground that it was a corporation and that the constitutional liberty of freedom of assembly was secured only to individuals, it was reflecting truly the philosophy of the founding fathers.”Footnote ²⁰

The predominance of individualism was an understandable by-product of the politics and culture of an earlier era. “The individualistic spirit of the [founding] fathers,” Pfeffer explained, “was a natural consequence of the expanding frontier and, at least in its pristine purity, was doomed to disappearance with the frontier.”Footnote ²¹ Modern, less individualistic times, however, demanded new understandings of constitutional rights:

Like all students of legal history, Pfeffer was well aware that the problem of unlawful association was not a new one: throughout American history, various types of associations had been outlawed. “Just as assembly for an unlawful purpose is not constitutionally protected, so too association for an unlawful purpose is not made immune from governmental interference by the First Amendment. Today, unlawful associations in the context of civil liberties are generally taken to refer to political associations whose purpose is to overthrow the government; but surprisingly the constitutional law concerning unlawful associations goes back more than half a century and grew out of religious, not political association.”Footnote ²³ Pfeffer finds the progenitor cases here to be the Mormon polygamy cases, where the defendant “was not himself charged either with practicing or with teaching polygamy; he was charged only with being a member of the Mormon Church which, he knew, advocated polygamy.” “Congress, said the [Supreme] Court, has the power to dissolve this unlawful association and to prevent its funds from being used for the unlawful purpose of promoting polygamy.”Footnote ²⁴

In his overview of civil liberties at mid-century, Civil Liberties in the United States: A Guide to Current Problems and Experience (1956), Cornell University political scientist Robert Cushman observed that “[t]he phrase ‘guilt by association’ is in constant use,” but that it was tossed about all too casually. “It is often loosely employed by those who condemn the drawing of any unfavorable inferences from a man's association with other persons under any circumstances,” Cushman wrote. “This of course is nonsense,” he noted, “for there are many instances in which we are bound to consider a man's associations in making various kinds of judgments about him.”Footnote ²⁵

Cushman insisted that “[t]he whole problem posed by ‘guilt by association’ should be considered against the background of well-established principles in the law which relate to presumptions of guilt.Footnote ²⁶ These rules have been developed over the years to protect persons from the injustices resulting from improper presumptions of guilt.”Footnote ²⁷ He went on to distill three such rules: first, that guilt must be personal; second, that the accused must be afforded the due-process opportunity to rebut the presumption; and, third, that there must be a rational connection between the fact offered as evidence and the inference of guilt drawn from it.Footnote ²⁸ He then undertook a critical assessment of the array of contemporary efforts to fight domestic communism in light of these three rules.Footnote ²⁹ Cushman discussed guilt by association as exerting a chilling effect on a specifically enumerated constitutional right—the right to petition the government for a redress of grievances: “Discouragement of the exercise of the right of petition, informal but nonetheless effective, is one of the end results of the doctrine of guilt by association. Stigma attaches to one who signs a petition (many did petition the President in 1933 to recognize Russia) which has also been signed by Communists and fellow travelers. Names on petitions will be carefully checked by officers administering loyalty and security programs.”Footnote ³⁰

Milton Konvitz opened his discussion of the freedom of association in Expanding Liberties by citing Alexis de Tocqueville and James Bryce (and Max Weber) for the proposition that the United States was, from its inception, “a nation of joiners.”Footnote ³¹ “The picture in the middle of the twentieth century,” Konvitz noted, in contrast to Pfeffer's reading of American history, “was not, in essentials, different. If individualism, in some significant sense, characterizes American life, it is of a special kind that has been described as ‘group individualism.’ … [A]ssociation remains a distinguishable and significant characteristic of American society.”Footnote ³²

Like Pfeffer, and despite this heritage, Konvitz too recognized the novelty of the constitutional right to free association—to the point of subtitling one of the sections of his free association chapter “A New First Amendment Freedom.”Footnote ³³ “Despite this proclivity of Americans to form or join associations,” he wrote, “it was not until 1958 in National Association for the Advancement of Colored People v. Alabama that the United States Supreme Court, for the first time, directly recognized freedom of association as a liberty guaranteed by the First Amendment…. Nowhere in the Bill of Rights of the Constitution is association mentioned….”Footnote ³⁴ Moreover, asserted Konvitz, “the omission was not due to bungling or an oversight. No draft of the Bill of Rights submitted by James Madison, nor any amendment proposed by any other member of Congress, which debated the Bill of Rights in 1789, mentioned association. Indeed, Madison's best-known contribution to The Federalist is an attack on voluntary associations, political or economic, which he called ‘factions.’ ”Footnote ³⁵ Madison, accordingly, “was not one to urge a constitutional guarantee of freedom of association.”Footnote ³⁶ In a similar vein, Konvitz went on to quote George Washington's warning in his Farewell Address against “the spirit of party.”Footnote ³⁷ Konvitz concluded that “the Founding Fathers felt hostile towards the idea of voluntary association.”Footnote ³⁸ When the Supreme Court issued its ruling in the NAACP case in 1958, it thus “broke away from the views of Madison and the other Founding Fathers, which had stood in the way of this constitutional development.”Footnote ³⁹ Nonetheless, Konvitz judged that “[t]hese decisions are a clear, significant gain. It is obvious that they are a gain for freedom of association, and they mark a considerable advance on the democratic philosophy of John Locke, James Madison, and the other thinkers who contributed to the hopes and fears that went into the framing of the First Amendment.”Footnote ⁴⁰

The Supreme Court's invention of this new right, Konvitz explained, was prompted by southern efforts to destroy the NAACP and to cripple its attempts to mount a sustained legal campaign against racial segregation in the South.Footnote ⁴¹ It was civil rights cases such as NAACP v. Alabama “which fixed the constitutional principles.”Footnote ⁴² These cases, in turn, intersected with others involving allegations of subversive activity and raising questions of “guilt by association.”Footnote ⁴³ Given their diverging fact scenarios, these cases might not have been related, except conceptually. But Konvitz noted that state legislators looking to undermine the efforts of civil rights organizations decided: “Why not look for subversives in the N.A.A.C.P., just as New Hampshire had looked for them in World Fellowship?”Footnote ⁴⁴

In inventing the freedom of association, the Supreme Court also marked a clear advance for civil rights—and for the right to litigate, which is important to the vindication of all the other rights: “for if Alabama or Arkansas or Florida or Louisiana had won in the Court, a way would have opened for the South to paralyze the N.A.A.C.P. and any other civil rights or civil liberties organization; and since the Bill of Rights is not self-executing, but is dependent upon vindication through litigation, the struggle for freedom and equality would have been effectively arrested.”Footnote ⁴⁵ One of the most precious rights of associations is the right

Konvitz devoted a separate chapter of Expanding Liberties to “Academic Freedom,” whose opening section was subtitled “Emergence of a New Constitutional Liberty.”Footnote ⁴⁷ He noted: “In the more important cases the problem of academic freedom arose in the context of freedom of association. Here we shall consider academic freedom only insofar as it may involve, or be involved with, freedom of association.”Footnote ⁴⁸ Konvitz then discussed the progression of Supreme Court decisions leading up to the Court's landmark defense of academic freedom. In Adler v. Board of Education (1952), spurning a freedom of assembly claim, the Court upheld the constitutionality of New York State's 1949 Feinberg Law requiring the state's board of regents to compile a list of subversive organizations, membership in which constituted prima facie grounds for dismissal from employment in the state's public schools. But in Wieman v. Updegraff (1952), the Court struck down an Oklahoma statute requiring all state employees to take an oath that they were not members of any group listed by the U.S. Attorney General as a subversive or Communist-front group on the grounds that the Oklahoma law did not distinguish between innocent and culpable membership. Finally, in Sweezy v. New Hampshire (1957), the Court (particularly in a concurrence written by Justice Felix Frankfurter) delivered a ringing defense of the value of academic freedom in voiding New Hampshire's prosecution of a University of New Hampshire professor for his failure to answer questions on the contents of a lecture he delivered on the Progressive Party (as well as on his knowledge of the party). “With the decision in the Sweezy case,” Konvitz wrote, “we can say that the Court gave academic freedom full and equal First Amendment status, so that it is on a par, for dignity and sanction, with the freedoms expressly enumerated in the Bill of Rights, and with freedom of association.”Footnote ⁴⁹

In his contribution to a book titled Civil Liberties Under Attack (1951), “The Pragmatic Necessity for Freedom,” Henry Steele Commager wrote:

After quoting at length from the chapter in Tocqueville's Democracy in America titled “The Uses Americans Make of Public Organizations,” Commager warned: “Every day it becomes more difficult to organize new associations, or to maintain old ones. Every day it becomes more difficult to undertake any program of reform or even change. But the instinct for voluntary association is the instinct for democracy, and the instinct for change is the instinct for life.”Footnote ⁵¹

In “Investigations of Radicalism and Laws Against Subversion,” another contribution to Civil Liberties Under Attack, Zechariah Chafee, Jr. linked associational rights to the importance of deliberation to life in a democracy. There are, he wrote, “great dangers … [to] … interfering by law with freedom of discussion through organizations. [Contemporary anti-subversion legislation] proposes to twist out of all recognizable shape one of the leading traditions of American life: the possibility of freely forming associations for all sorts of purposes—religious, political, social, and economic.”Footnote ⁵² Chafee then went on to note the historical importance of associations as a spur to social change, citing William Lloyd Garrison's Anti-Slavery Society, and the Granger and Populist movements.Footnote ⁵³

III. Sidney Hook

Sidney Hook's Heresy, Yes; Conspiracy, No (1953) was one of the most prominent mid-century works reflecting seriously on questions relating to the freedom of association. In this book, Hook sought to chart a middle path on the question of the legality of Communist Party membership between the “cultural vigilantes” of the right (the staunch supporters of Joseph McCarthy) and the “ritualistic,” “professional” liberals of the liberal left, “who are more hostile to anti-Communists than to communists.”Footnote ⁵⁴ Hook characterized both groups as “calamity howlers and hysteria mongers.”Footnote ⁵⁵ “Both groups flourish on each other's misapprehension,” he worried, “and their outcries have drowned out the voice of intelligence.”Footnote ⁵⁶

Hook, a professor of philosophy at New York University, was perhaps the most accomplished student of Columbia University professor and pragmatist philosopher John Dewey. Hook began as a Marxist and made the reconciliation of Marx's thought with Dewey's his primary intellectual project. An early supporter of the Soviet Union, Hook spurned the international communist movement and the USSR in the wake of the Hitler-Stalin Pact, though he remained a committed Marxian socialist for the rest of his life. Beginning in the 1930s, Hook became an indefatigable critic of communism and totalitarianism—indeed, one of the country's most prominent. This commitment endeared him to many on the right, and they came to consider Hook, if not a conservative himself, a hero to conservatives. He ended his career as a scholar at Stanford University's conservative Hoover Institution.

Although celebrated by many conservatives as a fierce anticommunist, Hook always considered himself not a traditionalist but a modern. In seeking to position himself within the currents of American history, he counted himself clearly on the side of the nascent civil libertarians of the early twentieth century who had fought for modern understandings of the freedom of speech:

But heresy—which Hook approved of, and invited—was readily distinguishable from conspiracy. Hook observed that all rights have their legal limits, and guarantees for the freedom of ideas are not guarantees for absolute freedom of conduct. “Freedom to worship God according to one's conscience is one of the historical cornerstones of the structure of American liberties,” Hook noted, “but it cannot be invoked to protect rituals which require human sacrifice or practices like plural marriages or refusal to submit to vaccination against plagues.”Footnote ⁵⁸

For Hook, conspiracy may have had an involvement with ideas, but its essence was in working together toward the performance of an illegal act. It also differed in other significant ways from heresy. Hook considered the elements of subterfuge, dishonesty, and deceit to be among the crucial distinctions between heresy and conspiracy. Heresy, Hook argued, was loud, open, and invited publicity. Conspiracy was furtive, secretive, and shunned the light.Footnote ⁵⁹

Like Konvitz and Commager, Hook praised the Tocquevillian vision of an America brimming with associative life: “No program to safeguard American democracy can be anything but self-defeating which discourages the existence and multiplication of such voluntary associations.”Footnote ⁶⁰ But he did not understand Communists as simply another addition to a nation of lively associations. As such, the appeal made to Tocqueville in defending them was misplaced. Communists were not pro-association; they were anti-association. Communists did not truly join associations: they infiltrated them. Many may have considered the Communist Party to be a free-standing association (putting aside, for the time being, its subservience to the Soviet Union). But, if so, it was on a mission to infiltrate and destroy the independence of other free-standing associations. It was viral. It was predatory. Its cells infiltrated healthy associations through deceit, took them over, and killed them. This was conduct, not belief. The Party's object was, through its conduct, to repress dissent and reduce the varieties of belief and purpose that help constitute a vital civil society. As was said repeatedly at the time, the Communist Party USA (CPUSA) was not simply another political party: it was a fifth column moving to attack the innards of the Tocquevillian civil society, with the aim of ultimately felling the liberal-democratic body politic itself.Footnote ⁶¹

This view of the CPUSA sheds an informative light on labor legislation such as the Taft-Hartley Act (1947), which required every labor union officer to file an annual affidavit with the National Labor Relations Board swearing that he was not a member of the Communist Party, and neither belonged to nor believed in any organization that “believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods,” as a condition for maintaining the rights of the union under the 1935 National Labor Relations Act. Given the view of the CPUSA as a fifth column, Taft-Hartley amounted not to a set of restrictions on the freedom of association, but rather to a government-administered effort to protect the autonomy of the union, and the democratic control of its membership. That is, these provisions of Taft-Hartley were designed to protect the union from being secretly invaded, and its legitimate, democratically-elected government from being overthrown.Footnote ⁶²

Many considered Communists to be simply another voice in the American tradition of dissent, speaking truth to power, expressing unwelcome and unorthodox ideas.Footnote ⁶³ On this view, Communists were yet another addition to the marketplace of ideas.Footnote ⁶⁴ Hook insisted, however, that it was the chief purpose of Communists to suppress heterodoxy and the free expression of ideas, to move forward inside the Trojan Horse of dissent and nonconformism (which seemed to him to have obviously fooled many civil-libertarian liberals, who would welcome them inside the gates of the city), and ultimately to lay siege to and destroy the marketplace:

“Under present conditions of political and military warfare,” Hook warned, “it is not hard to see what immense dangers to the security of liberal institutions [are] implicit in this strategy of infiltration and deceit.”Footnote ⁶⁶ Communists, he wrote, “operate through ‘fronts,’ … because they fear that, given a free choice of honestly labeled alternatives, they will be rejected; once they slip into power, they consolidate their position by terror.”Footnote ⁶⁷

Free governments are, and have always been, empowered to act against illegal conspiracies through criminal prosecution. The law of the United States was no exception: “Under existing law punishment is provided for criminal conspiracy, whether this be conspiracy in restraint of trade or conspiracy to overthrow the government by insurrection or to advocate such overthrow in time of clear and present danger.”Footnote ⁶⁸ That said, Hook believed that “there are noncriminal conspiracies in sectors of life which are not affected by legislative power. These sectors of life are social and cultural and are regulated by tradition, common standards of propriety or decency in personal relations, and sometimes by explicit rules.”Footnote ⁶⁹ Twentieth-century totalitarianism, however, presented society with unique problems, since it operated against the government through its predatory and viral infiltration and control of private associations in a society built upon vibrant associations:

The problem was particularly acute when it came to labor unions. After all, the political order created by the institution of the modern liberal state at the time of the New Deal was built upon the decision to accord broad governing powers to private labor unions.Footnote ⁷¹ The CPUSA set its sights on labor unions, the very type of association that earlier in the century had helped to advance commitments to free speech, freedom of assembly, and democracy—the type of association that, to achieve its successes, had been obliged to overcome the obstacles set in its way by the law of conspiracy.Footnote ⁷² “Every large labor organization in the United States,” Hook explained, “had been compelled to take administrative action against Communist party elements not because of their beliefs—their heresies—but because their pattern of conduct made the Communist party, and ultimately the Kremlin, the decisive power in the life of the union, and not the needs and wishes of the membership.”Footnote ⁷³

In addition to its secrecy and its commitment to deceit, the second aspect of the CPUSA that made it distinctive as an association was that it was dictatorial, hierarchical, and suppressed even the slightest hint of dissent. The Communist Party, Hook recounted, was “rigorously controlled by an iron-clad discipline which excludes those who are inactive or in disagreement with the line of the party on any question.”Footnote ⁷⁴ “Very few individuals who have discussed the issues posed by the existence of the Communist movement,” he lamented, “have paid proper attention to the existence of the mechanisms of control by which the Communist parties in all countries purge their ranks of the inactive, the doubtful, the half-hearted, or the critical—in short, of all whose conformity is less than total.”Footnote ⁷⁵

What, then, was to be done? Given the nature of the Communist conspiracy, there were, in Hook's estimation, very good reasons to exclude Communists from government posts. Communists could be expected to work at cross purposes to the government. In many cases, their ultimate goal was to thwart it, if not to overthrow it. Civil libertarian platitudes notwithstanding, there was good reason to consider the ideas an individual held when considering him for employment in a government (or other) position, particularly if his ideas were held fanatically.Footnote ⁷⁶ If we were to reflect upon this dispassionately for a moment, we would know this, of course. After all, as Hook noted, “No one questioned Senator [William] Borah's right to know whether Mr. Thurman Arnold believed that the anti-trust laws should be enforced before approving his appointment to a post whose responsibility included prosecution of violators of those laws.”Footnote ⁷⁷ And no one would argue that the fact that a man is a Ku Klux Klan member or sympathizer should be irrelevant to considering his fitness to serve as a schoolteacher or a federal judge. To make such determinations regarding governmental employment, Hook insisted, is a different decision from criminalizing Communist Party membership.

Hook, nevertheless, recognized the special problems posed by situations in which an individual was judged not for his membership in the Communist Party itself, but for his membership in a Communist front organization. These were the situations where questions of “guilt by association” became a problem: they raised questions involving the “lumping together [of] the sheep and the goats.”Footnote ⁷⁸ These situations, the pragmatist Hook averred, posed real concerns. Unfortunately, he concluded, “No single formula can be a guide to intelligent decision in such situations, but only tested knowledge acquired in long and close study of front organizations.”Footnote ⁷⁹

Hook was characteristically critical of both the detractors and the defenders of the Smith Act (1940), which criminalized the teaching or advocacy of the violent overthrow of the government or associating with any person or group conspiring to teach, advocate, or organize for doing so.Footnote ⁸⁰ Hook suggested that the nation keep the act, but with amendments: “The proscription should have been placed,” he wrote, “not on speech to achieve revolutionary overthrow, but on organization to achieve it, and not merely any organization but an organization set up and controlled by a foreign power.”Footnote ⁸¹

IV. The Freedom of Association Today in Developmental Perspective

As Keith Whittington has noted, political controversies over the scope of a freedom of association predated the mid-twentieth century. Under the (emergent) modern constitutional order, free association issues were taken up most prominently in disputes over the scope of the right of individuals to join and participate in the collective activities of labor unions.Footnote ⁸² Many labor union activities today considered ordinary—picketing, threatening to strike, organizing a boycott—were once considered illegal infringements of a company owner's property rights. Accordingly, workers associating together in a labor organization with the purpose of engaging in these activities were understood as conspiring for illegal ends. After a long political struggle over the course of the late nineteenth and early twentieth centuries, however, employers were held not to have any sort of property right against these activities, and the tactics of the labor movement were considered legitimate means of achieving ends—better working conditions and wages—that were newly understood as advancing not simply private interests but the broader public good. The tactics, moreover, once considered tortious conduct, were newly reconceptualized as amounting to the exercise of (desirable) First Amendment freedom of speech. Footnote ⁸³ All of these free association “problems,” however, were ultimately settled by New Deal labor legislation, which, under the regulatory auspices of the National Labor Relations Board, recognized labor unions as an integral part of a pluralist system of group-based workplace governance.Footnote ⁸⁴ Accordingly, under the state-sanctioned collective bargaining arrangements, the group was deemed presumptively to speak for and represent the views of its individual members. Along the way, a controversy over the freedom of association was transmogrified into a matter of administration.

Free association controversies, of course, did not suddenly disappear. As it happened, the middle years of the twentieth century were crucial in spurring the Supreme Court to fashion the outlines of our modern constitutional doctrine concerning the freedom of association as a first-order right. In this era, of course, free association rights were part and parcel of the Supreme Court's accelerating focus on the Bill of Rights in the 1950s and 1960s.Footnote ⁸⁵ In the wake of the free association right's involvement in the labor question, the right became associated chiefly with political controversies over subversion and civil rights.

Free association questions involving an individual's association with the Communist Party raised questions of possible subversive activity, in an era of heightened threats to, and fears about, national security. Real political events contributed to the framing of communist (and, often, progressive) groups as conspiratorial. The collapse of the popular front, the fall of China to the Communists, and the outbreak of the Korean War and the Cold War—all tied to an avowedly subversive international communist movement—raised suspicions among many about the motives of domestic Communists and fellow travelers.Footnote ⁸⁶

The closer one's membership in a group is tied to an illegal conspiracy, of course, the less weight is accorded to claims of the freedom of association. The practical problem, however, is the question of whether mere membership in a group amounts to collusion in a criminal conspiracy. Does membership alone constitute participation, if not by acts, then by signaling support of the broader project? As Sidney Hook noted, these questions can only be answered after a close consideration of the facts of the case at hand.

In the new context, following the pioneering settlements arrived at in response to the labor question, and the Red Scare free speech cases, matters relating to group membership were also considered as raising important questions of the freedom of speech.Footnote ⁸⁷ As such, free association questions would henceforth raise factual questions about the distinction between conduct and speech. Is a certain group proscribable as a group committed either to overthrowing the government or to committing a violent attack on the country? If so, is one obligated to disclose one's membership in the organization? Can the government keep a list of proscribed organizations? Can it engage in surveillance of the activities of the group? Does membership in the organization alone imply complicity in the group's purposes? What of so-called “innocent” members, who may be committed to some, but not all, of the group's purposes? What of members who do not actually know the group's full slate of purposes, or the purposes (and actions) of some subset of its members? What debilities can be visited upon members of such a group? For example, can they be denied public employment on the basis of their group membership? Can they be dismissed from private employment on the same basis?

Interestingly enough, the current “war on terror” has raised similar questions about guilt by association. The McCarran-Walter Act (1952), passed at the height of the Cold War, permitted the exclusion or deportation of aliens on ideological grounds—that is, on the grounds that they had engaged in, or had the purpose of engaging in, activities that were subversive or contrary to the national interest.Footnote ⁸⁸ Under McCarran-Walter, the government has repeatedly relied upon an individual's articulated beliefs (such as statements critical of U.S. foreign policy) and associations (such as links to radical, communist, or communist front groups) as grounds for his deportation and exclusion from the United States. McCarran-Walter was repealed in 1990. In the aftermath of the Oklahoma City bombing, however, its relevant provisions were revived in the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, which replaced McCarran-Walter's provisions on subversion with new language applicable to terrorism and supporters of terrorism.Footnote ⁸⁹ At the same time, the AEDPA gave the secretary of state essentially unreviewable discretion to designate foreign groups as “terrorist” organizations.Footnote ⁹⁰

The AEDPA also criminalized the provision of any financial or material support for such organizations. Under the 1996 law, an individual can be charged with aiding a terrorist group even if he had no knowledge that the group was on the terrorist watch list, had no intention of supporting terrorism, and had no ties to particular acts of terror. Working in conjunction with the AEDPA, the USA Patriot Act (2001), passed shortly after the September 11 terrorist attacks, makes aliens deportable for having any association whatsoever with a “terrorist organization.” The Patriot Act defines terrorism to include any use of, or threat of the use of, violence, and defines a “terrorist organization” as any group of two or more that has used or threatened to use violence, a definition that sweeps broadly to cover, potentially, a wide array of groups (such as, for example, radical environmentalist and anti-abortion groups). Under the Patriot Act, domestic, and not just foreign, groups may be designated as terrorist organizations.Footnote ⁹¹

The Patriot Act puts the full force of the federal government's investigatory powers behind efforts to find out whether or not individuals are either members of, or have contributed to, such groups. Since September 11, 2001, the federal government has availed itself of the AEDPA and the USA Patriot Act, along with the president's Article II executive and commander-in-chief powers to protect national security, to engage in heightened scrutiny (often on the basis of secret evidence) of the associational ties of Muslim aliens or immigrants, and of (sometimes charitable) groups with ties to the Middle East.Footnote ⁹²

When it comes to questions of guilt by association in the national security area, it is very difficult to say that these matters were “settled” in the mid-twentieth-century free association decisions of the Supreme Court in the same way that New Deal statutory and administrative orders settled the free association questions raised by labor unions. These matters will always turn on factual determinations concerning the severity of the threat, the nature of the group in question, and the individual's relationship to the group and its purposes.

This means that the ongoing “war on terror” raises many of the same questions that the mid-century civil libertarians grappled with during the height of the Cold War. Today, the issues concern membership in organizations designated as terrorist organizations by the federal government. Like the Communist Party USA at mid-century, organizations listed by the government as terrorist groups are likely to be transnational organizations. Just as the CPUSA was involved in labor and civil rights organizing, in addition to promoting worldwide revolution, groups like Hamas or the Popular Front for the Liberation of Palestine will be involved in an array of charitable and humanitarian initiatives in addition to their more violent endeavors. One may join or contribute to the group in order to advance one of what one considers to be the group's legitimate projects, but may end up being tarred with collusion in one of its other (violent or illegal) activities, of which one may or may not have been aware. Or one may be interested in supporting the full range of the group's activities, and may hide behind its charitable initiatives when called upon to justify one's membership. The civil libertarian case law arising out of the line of mid-century Communism cases holds that one cannot be charged with guilt by association unless one had the intent to support the specific ends of the group. So far, this principle has not been followed with respect to today's terrorism designation under the 1996 Antiterrorism Act and the USA Patriot Act.

In these circumstances, it is not surprising that, for the first time in many years, contemporary scholars are devoting significant attention to guilt by association.Footnote ⁹³ The question remains: Will the mid-century associational precedent be applied to these laws, or will constitutional doctrine change? Already, individuals have challenged in court the designation of groups they belong to as terrorist groups.Footnote ⁹⁴ The law in this area remains very much in flux.

V. Conclusion

For those whose eyes have been trained for many years now on the freedom of association as a second-order identity politics and civil rights question involving the right to exclude—and a cursory glance at most contemporary civil liberties textbooks makes clear that the eyes of many students and scholars alike have been so trained—an airing of the full spectrum of questions concerning guilt by association will mark a notable departure in focus. If these questions remain on the front burner in American politics in the years to come, new civil liberties textbooks, and updated editions of established ones, may once again come to reflect the interests and concerns of the now largely forgotten mid-twentieth-century civil libertarians rather than the interests of the currently more familiar identity/exclusion-focused liberals who succeeded them.

There is a strong tendency on the part of legal academics to consider the nature of rights only in light of the pressing problems that the rights seem to implicate at the time they are writing. More comprehensive descriptions, however, allow us to give fuller accounts not simply of the history of constitutional rights, but of their nature. We may be entering a historical moment with more similarities to the era in which the free association right was first named than to the era in which, subsequently, it was eclipsed. If so, the rich complexities of the constitutional right to free association will be increasingly discussed in the years to come.