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Friends, Associates and Associations: Theoretically and Empirically Grounding the Freedom of Association

This Article argues that while the freedom of association is back at the center of the First Amendment, it suffers from the fact that it has been both theoretically and doctrinally subsumed by the freedom of speech. The First Amendment’s self-governance interest is necessarily broader than an interest in political debate and a vibrant marketplace of political ideas. Association and associations enable the political participation that can turn ideas and debate into the action required to create democratic accountability. Free association doctrine is, therefore, uniquely positioned to promote representative government by protecting conditions necessary for an active citizenry. A reoriented freedom of association doctrine would focus on how its protections affect civic and political engagement, taking into account findings from the empirical sciences. The result would be a unique right that furthers the self-governance interest of the First Amendment by protecting groups (formal and informal) and their capacity to act. This would ensure, first, that the First Amendment protects the participation necessary for meaningful self-governance and, second, that free association doctrine is not redundant. Free speech doctrine could continue to attend to its traditional ends.