Exclusions of groups and designated public fora

[A.E. Brownstein]

I think there may be a difference between purely expressive associations,
mixed expressive and non-expressive associations, and non-expressive
associations. For a purely expressive association, membership and
expressive activity are so intertwined that excluding a group for
discriminating in its membership is essentially excluding the group for
what it believes. But if an organization has an expressive mission and also
does many things that seem entirely unrelated to expressive activity and
the organization practices discrimination in all aspects of its activities,
I think the government may be able to treat such groups differently than
non-discriminatory organizations. The White Citizens Council may have a
different First Amendment status than the White Citizens Council Automobile
Manufacturing Plant.

Thus, it is not clear to me that the CFC in Cornelius would have been
prohibited by the First Amendment from excluding a charitable hospital from
the charity drive because it refused to provide services to black or Jewish
patients or because it refused to hire any black or Jewish employees. I
think that is an open issue.

This doesn't answer the question of whether the Scouts should be considered
a purely expressive or a mixed expressive and non-expressive association or
how we tell the difference between the two. But assuming that there is such
a thing as a private non-commercial organization that isn't protected by
the First Amendment with regard to its discriminatory practices, I'm not
sure that merging such an organization with a discriminatory expressive
association necessarily means that the First Amendment prevents the
government from treating the new organization (which discriminates in all
of the facets of its operation) differently than organizations that do not
practice discrimination with regard to things like access to the state
workplace for charity drives. Again, I think these are open questions that
have not been fully resolved by the case law yet. At some point an
organization may be excluded without violating the First Amendment because
of what it does (e.g. practicing racial discrimination in hiring employees
or providing medical services) as opposed to what it says.


      Alan Brownstein

      UC Davis


At 07:53 PM 06/14/2000 -0400, you wrote:
>MArty distinguishes between a member ship policy and speech.But in the
>contexzt of the scouts.membership is a form of first amendment activity (or
>at least could be if the scouts ennunciated a policy witrh regard to
>membership) so what difference should it make if the right in question is
>speech or association?
>Incidentally,many black family service agencies will not place children in
>white homes.Should they be excluded from the campaign also.?
>Marc Stern