# Roberts v. United States Jaycees/Concurrence O'Connor

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion O'Connor
Justice O'Connor, concurring in part and concurring in the judgment.
I join Parts I and III of the Court's opinion, which set out the facts and reject the vagueness and overbreadth challenges to the Minnesota statute. With respect to Part II-A of the Court's opinion, I agree with the Court that the Jaycees cannot claim a right of association deriving from this Court's cases concerning "marriage, procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. 693, 713 (1976). Those cases, "while defying categorical description," ibid., identify certain zones of privacy in which certain personal relationships or decisions are protected from government interference. Whatever the precise scope of the rights recognized in such cases, they do not encompass associational rights of a 295,000-member organization whose activities are not "private" in any meaningful sense of that term.
I part company with the Court over its First Amendment analysis in Part II-B of its opinion. I agree with the Court that application of the Minnesota law to the Jaycees does not contravene the First Amendment, but I reach that conclusion for reasons distinct from those offered by the Court. I believe the Court has adopted a test that unadvisedly casts doubt on the power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society. At the same time, the Court has adopted an approach to the general problem presented by this case that accords insufficient protection to expressive associations and places inappropriate burdens on groups claiming the protection of the First Amendment.

#### I

The Court analyzes Minnesota's attempt to regulate the Jaycees' membership using a test that I find both overprotective of activities undeserving of constitutional shelter and underprotective of important First Amendment concerns. The Court declares that the Jaycees' right of association depends on the organization's making a "substantial" showing that the admission of unwelcome members "will change the message communicated by the group's speech." See ante, at 626-628. I am not sure what showing the Court thinks would satisfy its requirement of proof of a membership-message connection, but whatever it means, the focus on such a connection is objectionable.
Imposing such a requirement, especially in the context of the balancing-of-interests test articulated by the Court, raises the possibility that certain commercial associations, by engaging occasionally in certain kinds of expressive activities, might improperly gain protection for discrimination. The Court's focus raises other problems as well. How are we to analyze the First Amendment associational claims of an organization that invokes its right, settled by the Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-466 (1958), to protect the privacy of its membership? And would the Court's analysis of this case be different if, for example, the Jaycees membership had a steady history of opposing public issues thought (by the Court) to be favored by women? It might seem easy to conclude, in the latter case, that the admission of women to the Jaycees' ranks would affect the content of the organization's message, but I do not believe that should change the outcome of this case. Whether an association is or is not constitutionally protected in the selection of its membership should not depend on what the association says or why its members say it.
The Court's readiness to inquire into the connection between membership and message reveals a more fundamental flaw in its analysis. The Court pursues this inquiry as part of its mechanical application of a "compelling interest" test, under which the Court weighs the interests of the State of Minnesota in ending gender discrimination against the Jaycees' First Amendment right of association. The Court entirely neglects to establish at the threshold that the Jaycees is an association whose activities or purposes should engage the strong protections that the First Amendment extends to expressive associations.
On the one hand, an association engaged exclusively in protected expression enjoys First Amendment protection of both the content of its message and the choice of its members. Protection of the message itself is judged by the same standards as protection of speech by an individual. Protection of the association's right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice. "In the realm of protected speech, the legislature is constitutionally disqualified from dictating...the speakers who may address a public issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 784-785 (1978); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972). A ban on specific group voices on public affairs violates the most basic guarantee of the First Amendment--that citizens, not the government, control the content of public discussion.
On the other hand, there is only minimal constitutional protection of the freedom of commercial association. There are, of course, some constitutional protections of commercial speech--speech intended and used to promote a commercial transaction with the speaker. But the State is free to impose any rational regulation on the commercial transaction itself. The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only with persons of one sex.
The dichotomy between rights of commercial association and rights of expressive association is also found in the more limited constitutional protections accorded an association's recruitment and solicitation activities and other dealings with its members and the public. Reasonable, content-neutral state regulation of the time, place, and manner of an organization's relations with its members or with the State can pass constitutional muster, but only if the regulation is "narrowly drawn" to serve a "sufficiently strong, subordinating interest" "without unnecessarily interfering with First Amendment freedoms." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 636-637 (1980); see Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 960-961 (1984). Thus, after careful scrutiny, we have upheld regulations on matters such as the financial dealings between an association and its members, see Buckley v. Valeo, 424 U.S. 1, 25 (1976), disclosure of membership lists to the State, see NAACP v. Alabama, supra, at 463; Shelton v. Tucker, 364 U.S. 479, 486 (1960), access to the ballot, time limits on registering before elections, and similar matters, see, e. g., Rosario v. Rockefeller, 410 U.S. 752 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972); Bullock v. Carter, 405 U.S. 134 (1972); Jenness v. Fortson, 403 U.S. 431 (1971); Williams v. Rhodes, 393 U.S. 23 (1968). See also Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). By contrast, an organization engaged in commercial activity enjoys only minimal constitutional protection of its recruitment, training, and solicitation activities. While the Court has acknowledged a First Amendment right to engage in nondeceptive commercial advertising, governmental regulation of the commercial recruitment of new members, stockholders, customers, or employees is valid if rationally related to the government's ends.
Many associations cannot readily be described as purely expressive or purely commercial. No association is likely ever to be exclusively engaged in expressive activities, if only because it will collect dues from its members or purchase printing materials or rent lecture halls or serve coffee and cakes at its meetings. And innumerable commercial associations also engage in some incidental protected speech or advocacy. The standard for deciding just how much of an association's involvement in commercial activity is enough to suspend the association's First Amendment right to control its membership cannot, therefore, be articulated with simple precision. Clearly the standard must accept the reality that even the most expressive of associations is likely to touch, in some way or other, matters of commerce. The standard must nevertheless give substance to the ideal of complete protection for purely expressive association, even while it readily permits state regulation of commercial affairs.
In my view, an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association's activities are not predominantly of the type protected by the First Amendment. It is only when the association is predominantly engaged in protected expression that state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard. An association must choose its market. Once it enters the marketplace of commerce in any substantial degree it loses the complete control over its membership that it would otherwise enjoy if it confined its affairs to the marketplace of ideas.
Determining whether an association's activity is predominantly protected expression will often be difficult, if only because a broad range of activities can be expressive. It is easy enough to identify expressive words or conduct that are strident, contentious, or divisive, but protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young, and community service. Cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). The purposes of an association, and the purposes of its members in adhering to it, are doubtless relevant in determining whether the association is primarily engaged in protected expression. Lawyering to advance social goals may be speech, NAACP v. Button, 371 U.S. 415, 429-430 (1963), but ordinary commercial law practice is not, see Hishon v. King & Spalding, 467 U.S. 69 (1984). A group boycott or refusal to deal for political purposes may be speech, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912-915 (1982), though a similar boycott for purposes of maintaining a cartel is not. Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.
The considerations that may enter into the determination of when a particular association of persons is predominantly engaged in expression are therefore fluid and somewhat uncertain. But the Court has recognized the need to draw similar lines in the past. Two examples, both addressed in cases decided this Term, stand out.
The first concerns claims of First Amendment protection made by lawyers. On the one hand, some lawyering activity is undoubtedly protected by the First Amendment. "[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment." In re Primus, 436 U.S. 412, 426 (1978); see NAACP v. Button, supra, at 429-430. On the other hand, ordinary law practice for commercial ends has never been given special First Amendment protection. "A lawyer's procurement of remunerative employment is a subject only marginally affected with First Amendment concerns." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 459 (1978). We emphasized this point only this Term in Hishon v. King & Spalding, supra, where we readily rejected a large commercial law firm's claim to First Amendment protection for alleged gender-based discriminatory partnership decisions for associates of the firm. We found no need to inquire into any connection between gender as a condition of partnership and the speech of the law firm, and we undertook no weighing of "compelling" state interests against the speech interests of the law firm. As a commercial enterprise, the law firm could claim no First Amendment immunity from employment discrimination laws, and that result would not have been altered by a showing that the firm engaged even in a substantial amount of activity entitled to First Amendment protection.
We have adopted a similar analysis in our cases concerning association with a labor union. A State is free to impose rational regulation of the membership of a labor union representing "the general business needs of employees." Railway Mail Assn. v. Corsi, 326 U.S. 88, 94 (1945) (emphasis added). The State may not, on the other hand, compel association with a union engaged in ideological activities. Abood v. Detroit Board of Education, 431 U.S. 209, 236 (1977). The Court has thus ruled that a State may compel association for the commercial purposes of engaging in collective bargaining, administering labor contracts, and adjusting employment-related grievances, but it may not infringe on associational rights involving ideological or political associations. Ibid. We applied this distinction in Ellis v. Railway Clerks, 466 U.S. 435 (1984), decided this Term. Again, the constitutional inquiry is not qualified by any analysis of governmental interests and does not turn on an individual's ability to establish disagreement with the particular views promulgated by the union. It is enough if the individual simply expresses unwillingness to be associated with the union's ideological activities.
In summary, this Court's case law recognizes radically different constitutional protections for expressive and nonexpressive associations. The First Amendment is offended by direct state control of the membership of a private organization engaged exclusively in protected expressive activity, but no First Amendment interest stands in the way of a State's rational regulation of economic transactions by or within a commercial association. The proper approach to analysis of First Amendment claims of associational freedom is, therefore, to distinguish nonexpressive from expressive associations and to recognize that the former lack the full constitutional protections possessed by the latter.

#### II

Minnesota's attempt to regulate the membership of the Jaycees chapters operating in that State presents a relatively easy case for application of the expressive-commercial dichotomy. Both the Minnesota Supreme Court and the United States District Court, which expressly adopted the state court's findings, made findings of fact concerning the commercial nature of the Jaycees' activities. The Court of Appeals, which disagreed with the District Court over the legal conclusions to be drawn from the facts, did not dispute any of those findings. United States Jaycees v. McClure, 709 F.2d 1560 (CA8 1983). "The Jaycees is not a political party, or even primarily a political pressure group, but the advocacy of political and public causes, selected by the membership, is a not insubstantial part of what it does.... [A] good deal of what the [Jaycees] does indisputably comes within the right of association...in pursuance of the specific ends of speech, writing, belief, and assembly for redress of grievances." Id., at 1570.
There is no reason to question the accuracy of this characterization. Notwithstanding its protected expressive activities, the Jaycees--otherwise known as the Junior Chamber of Commerce--is, first and foremost, an organization that, at both the national and local levels, promotes and practices the art of solicitation and management. The organization claims that the training it offers its members gives them an advantage in business, and business firms do indeed sometimes pay the dues of individual memberships for their employees. Jaycees members hone their solicitation and management skills, under the direction and supervision of the organization, primarily through their active recruitment of new members. "One of the major activities of the Jaycees is the sale of memberships in the organization. It encourages continuous recruitment of members with the expressed goal of increasing membership.... The Jaycees itself refers to its members as customers and membership as a product it is selling. More than 80 percent of the national officers' time is dedicated to recruitment, and more than half of the available achievement awards are in part conditioned on achievement in recruitment." United States Jaycees v. McClure, 534 F. Supp. 766, 769 (Minn. 1982). The organization encourages record-breaking performance in selling memberships: the current records are 348 for most memberships sold in a year by one person, 134 for most sold in a month, and 1,586 for most sold in a lifetime.
Recruitment and selling are commercial activities, even when conducted for training rather than for profit. The "not insubstantial" volume of protected Jaycees activity found by the Court of Appeals is simply not enough to preclude state regulation of the Jaycees' commercial activities. The State of Minnesota has a legitimate interest in ensuring nondiscriminatory access to the commercial opportunity presented by membership in the Jaycees. The members of the Jaycees may not claim constitutional immunity from Minnesota's antidiscrimination law by seeking to exercise their First Amendment rights through this commercial organization.
For these reasons, I agree with the Court that the Jaycees' First Amendment challenge to the application of Minnesota's public accommodations law is meritless. I therefore concur in Parts I and III of the Court's opinion and in the judgment.

#### Notes

. See, e. g., Girl Scouts of the U. S. A., You Make the Difference (1980); W. Hillcourt, The Official Boy Scout Handbook (1979); P. Fussell, The Boy Scout Handbook and Other Observations 7-8 (1982) ("The Official Boy Scout Handbook, for all its focus on Axmanship, Backpacking, Cooking, First Aid, Flowers, Hiking, Map and Compass, Semaphore, Trees, and Weather, is another book about goodness. No home, and certainly no government office, should be without a copy").
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