Freedom of association is treated across The Bob Zadek Show as a First Amendment right that protects the act of coming together—pooling money, resources, and speech—rather than any claim that a group is a person. The sources locate the right in several settings: campaign finance, unenumerated constitutional rights, immigration, and anonymous speech.
Citizens United and the right to pool resources
Mike Munger, described as a Duke University economist, told Bob Zadek that Hillary: The Movie, an hour-and-15-minute documentary arguing that Hillary Clinton was a bad candidate, was barred from theaters and television within 60 days of the 2008 election under McCain-Feingold. Munger said the Federal Election Commission’s reading of the law was correct, but that the law itself was unconstitutional and had been upheld in McConnell v. FEC Who Wants to Buy a Politician? With Mike Munger (2015).
Munger described the litigation strategy of asking what would happen to a book published by Cambridge University Press containing the sentence that Hillary Clinton was a good or bad candidate within 60 days of an election. The Solicitor General, Munger said, answered correctly that the book’s publication would be banned, and Munger recalled silence in the courtroom at that implication. After a rehearing, the decision written by Anthony Kennedy expanded the issue from nonprofit corporations to for-profit corporations and overturned McConnell v. FEC Who Wants to Buy a Politician? With Mike Munger (2015).
Munger stressed that the phrase “corporations are people” never appears in the decision, and that the decision rests on freedom of association: a group of people may come together, pool their resources, and express political views. He quoted Kennedy’s opinion that if the First Amendment has any force, it prohibits Congress from fining or jailing associations of citizens for engaging in political speech. Bob Zadek added that if one person has freedom of speech, a group of persons has the same freedom of speech Who Wants to Buy a Politician? With Mike Munger (2015).
Unenumerated rights and grassroots tyranny
In a discussion with Clint Bolick, Zadek argued that rights such as the right to travel from New York to New Jersey and the right to raise one’s children appear nowhere in the Bill of Rights, yet no one questions them, and he attributed to the Ninth Amendment the reminder that the list of rights in the first eight amendments is not exclusive Local Leviathan: Clint Bolick on Grassroots Tyranny (2018).
Bolick agreed, saying the Supreme Court has subsequently recognized such rights even though they do not explicitly appear in the Constitution. He identified Robert Bork as probably the most prominent of the conservative theorists who hold that a right not explicitly listed leaves the subject matter entirely to democratic decision-making, and said that view turns the Constitution on its head: the document confers a limited number of powers on the national government and reserves the rest to the states and all rights to the people Local Leviathan: Clint Bolick on Grassroots Tyranny (2018).
Zadek framed Bolick’s book as warning that moving power down to local government does not end the battle, because majority rule at the local level can itself be tyrannical. He invoked Madison and the founders as fearing the tyranny of the majority, and observed that being ruled cruelly does not feel better when the cruelty is dispensed by a majority rather than a despot Local Leviathan: Clint Bolick on Grassroots Tyranny (2018).
Immigration and the association rights of property owners
Zadek raised the case of the prototypical immigrant family that simply wants to live with less fear and more freedom and to exercise a natural right of travel, asking whether such a family has that right and whether it is cruel to deny it even if the net effect on the country were somewhat negative The Economics of Immigration (2022).
Benjamin Powell answered that he does not think of a right to immigrate as absolute—no one has a right to cross another person’s ranch in Texas without permission—but distinguished that from legal checkpoints for entering the country. Powell located the right in freedom of association tied to property owners: by what right does a government filter whom existing property owners may rent or sell a residence to, or whom an employer may hire, based on lines politicians drew on maps. On his account the rights reside with existing property owners in the United States, and it is their freedom of association that anti-immigration laws violate, rather than there being an inherent right to immigrate The Economics of Immigration (2022).
Anonymity as an offshoot of association
Zadek summarized the “right to be forgotten” for listeners—whether someone may require old information, such as a teenage shoplifting conviction, to stop being indexed by search engines—and noted that the United States has no general law of that kind The United States of Anonymous (2022).
Jeff Kosseff told him that the right to anonymous speech began being recognized through the courts not in a speech case but in a free association case, in the years right after Brown v. Board of Education. The NAACP was fighting to desegregate Alabama’s school systems; state officials wanted to stop the group from operating in the state, and the Attorney General noticed the NAACP had not filed the proper corporations filing application. Rather than demand the form and a $10 fee, the state sued to oust the group from Alabama The United States of Anonymous (2022).
Kosseff said the case went to a judge named Walter Jones, who had also presided over New York Times v. Sullivan and who had written columns saying he believed the white race superior. Jones issued a temporary order shutting down the NAACP and a discovery order requiring its full Alabama membership list, then imposed high daily fines for noncompliance. Kosseff noted there was no real need for the list to adjudicate a corporations filing dispute. The NAACP refused, citing evidence of retaliation against members, and the Supreme Court unanimously held that it did not have to provide the list, finding a real threat of retaliation and that disclosure would violate the freedom of association The United States of Anonymous (2022).
Across episodes
The topic recurs in four episodes spanning 2015 to 2022, and the treatment shifts with the setting rather than developing a single argument. Munger (2015) grounds association in the corporate-speech holding of Citizens United; Bolick (2018) and Zadek place it among unenumerated rights arrayed against majority rule; Powell (2022) relocates it to the property and hiring decisions of existing Americans; and Kosseff (2022) traces anonymous speech to the NAACP litigation. Mark Lutter’s 2018 discussion of charter cities lists freedom of association among classical liberal ideals such as free speech and freedom of contract that such projects would pursue, but the excerpts do not develop the concept there The End of Nation-States? (2018).
What the sources do not cover
The excerpts do not state the state in which the NAACP litigation arose, the name of the case, or which amendment the Supreme Court’s holding turned on beyond the general reference to freedom of association. They do not give the outcome of McConnell v. FEC beyond its being overturned in Citizens United, nor the vote margins in either decision. The excerpts also break off mid-sentence in the Kosseff discussion, so the remainder of his account of the NAACP case is not available here.