Free speech and democracy


 This is a Brief of Whitney v. California, a 1925 case about the Free Speech of a Communist, Charlotte Whitney.  In later cases before the Supreme Court, the right of free speech would be strengthened more than the “imminent lawless action” test used on Charlotte Whitney Here, the mere idea that Charlotte Whitney’s speech advocated a clear and present danger, and that under the state Syndicates law by which she was convicted, her speech had a bad tendency to create an imminent lawless action, was found to be quite enough to uphold her conviction.  Free speech was valuable but Syndicacy was upheld, even though it outlawed mere advocacy of violence.  Nothing clear or present was required of the danger complained of in the law.

The Court would later require intent, imminence, and the likelihood the speech presented a clear and present danger, to overcome a guarantee of free speech. That, in fact, is the test we use today to determine if the speech ought to be protected.  

Justice Hugo Black would explain that stronger test in the Brandenburg v. Ohio case 395 U.S. 444 (1969).  The Whitney case of the 1920s, whose “bad tendency to create an imminent lawless action” free speech test was shored up in the 1960s, is interesting for three reasons, even though it hs been overruled  since 1969:

  1. The high-minded idealism described by Brandeis explains how free speech supports democracy
  2. The story of a Communist Labor Party leader who went to prison for politics in America is tragic and should not be forgotten
  3. The seeds of judicial activism evident is an example of high minded ideals outlined that aren’t actually in the “black letters on parchment” and therefore Constitutionalists hate to see the Court use those ideals).

The issue was whether the communist, Charlotte Whitney, could be vindicated under the 14th Amendment substantive due process right of free speech, or was she criminally liable under the California Syndicalism statute?

The rule: the Fourteenth Amendment allowed the federal government to protect free speech unless the speech showed a “bad tendency to create an imminent lawless action.”

The explanation for the rule

The Court relied on what our forefathers intentions were in drafting the Constitution coupled with the values (the Founders held) themselves.  These noble ideals gave the Court their authority to uphold the value of free speech in a federal court.

Brandeis, in a concurring opinion of the Court, explained  those noble terms…..that is, why free speech was valuable to democracy:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. [n2] They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357, available at


Applying the rule:

The Court explained, that in the case of the Fourteenth Amendment exception (the clear and present danger test),

“Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”


But, the Supreme Court distinguished between the law and the application of the law.  They found a way to be distressed about the liberty interest– the guarantee of free speech– without actually freeing the Communist in the case.



Charlotte Whitney was later pardoned because of Brandeis’s concurring opinion (so don’t call it dicta!). The law against Syndicalism was not struck down.  Democracy continued to slump along.  The right to free speech is the thing that got stronger than Charlotte Whitney saw the blessing in….:  for, now, to foreclose an Americans right to free speech, that speech most be proven to be intended to present a clear and present danger that is imminent and likely to occur.


Post script

The devil’s in the details…

Whitney’s communism was maybe why it took the Court so long to get serious about the test they used to judge when to set down the First Amendment right, and when to keep it as a free pass.  The Brandenberg Test that overruled Whitney v California in the 1960s, (which finally required intent, imminence, and likelihood to present a clear and present danger) offered so much more protection to people who want to speak their mind and their political speech is perhaps frightening and distasteful for most.

Brandenberg v. Ohio was written in the context of a member of the KKK, Clarence Brandenberg, who had been convicted for Syndicalism, the same crime Charlotte Whitney went to prison for. Brandenburg v. Ohio 395 U.S. 444 (1969), but this time, in the context of speech opposing Blacks and Jews.

Interestingly, and maybe it is just the kind of sin that the world gives a man a chance to atone for later, Justice Black, the civil libertarian and absolutist First Amendment Justice who wrote the Brandenberg opinion that gave such broad new protection to First Amendment speech, had briefly been a member of the KKK. (see for a list of Pulitzer Prize winners, one of whom was Ray Spriegle for his series about Hugo Black in the Ku Klux Klan. Maybe Justice Black was sympathetic and free speech was along for the ride…or maybe he saw his chance for redemption.


Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2

4. FN4


6. FN6
7. FN7

8. FN8

Judges in Monroe County, New York (7th Judicial District)


If you click on the picture, you should be able to enlarge it and scroll through the data collected.

The table shows when judges in the 7th judicial department are up for re-election (Monroe County and surrounding area, Rochester NY proper included). I made a note of relevant information about each. At the top of the table, you can see the three people running this year; the Republican candidate has a website, but the other two (Democrat and Working Party), well; crickets.

Every candidate in red is Republican.

People who are not chosen by their Party, cannot get on the ticket for election. Some people find that unfair. But the Supreme Court unanimously held in 2008 in Board of Elections v Lopez Torres that people running do not have the right to a “fair shot” at doing so.

See at (c)

So, while this table showcases that when a party supports a candidate, they then have a chance to win the election; it more clearly showcases that in Monroe County, running as anything other than Republican is a waste of time.

Still, I persist in pretending that there exists here a democracy nurtured by an informed public in the political process. The media has decided to focus on a freak show contest between grotesque choices; one clearly worse than the other, but both terrible. In the meantime, I present to you your local judicial information.

This is a starting point; you are likely young and better at the internet than me. Get to it.

The secret of liberty

Children are safeguarding my ability to write this.  They went to jail for me, for you, for Blacks in particular but for all Americans generally.  “Black Lives Matter” was what they conveyed. It wasn’t just a slogan.  It was an action.  Their presence in the street, disrupting business as usual and changing the conversation, spoke symbolically for them: BLACK LIVES MATTER.

Their pure speech (sitting down in the street, blocking traffic, symbolically saying “Black Lives Matter”) was shut down by the system which took it sensitively to heart as if the criminal justice system were a tender orchid.  This happened on July 8, 2016 in Rochester New York.

William Brandeis wrote of the founding fathers, “They believed liberty to be the secret of happiness and courage to be the secret of liberty.” Whitney v. California, 274 U. S. 357 (1927).

The protesters in the Black Lives Matter movement know about courage.  Courage is when you take to the streets, are faced with an occupying police force in riot gear and carrying all the weapons, and you cheer each other with hugs and song and chants and refuse any internal flight-or-fight instinct to break shit in response.  None of the protesters destroyed anything.  They lobbed… political speech… at East Ave and Alexander:  Black Lives Matter!

How dare they, right?  Blue lives, all lives, that whole thing.  Everyone matters!

I had a dream my daughter got killed by a crane.  It was parked in the middle of the street, and she was confused, and stayed in the street just a little too long.  In the dream, the crane picked her up and smashed her against the ground.  I woke crying.  I wondered if that’s what it’s like to have a Black child, to want to protect him from the system, but knowing the system, cold, powerful, not even mean!… not necessarily mean, but maybe just is what it is, a machine that picks things up and smashes them, and knowing my black child would have to be fucking nimble to avoid getting smashed by this system, right in the street.   So when I hear people say, Blue Lives Matter, I think, they are saying, essentially, “Crane Drivers Matter!”  Well, yes.  Everyone matters.  People matter one and all.  We were created equally. But you know, cranes themselves?  The system?  It does not matter, to me, the way people do.  It is liable to non-human, systemically-intentional error.  And system drivers are sometimes, at some point or other, complicit.  They do not, I reiterate, need to be cruel, or terrible, in order to be complicit.  They can be kind, helpful, alert, vigilant, guardians who come to help when no one else will.   They are nice people!  Complicit nice people.

They are not, however, tender orchids in the hothouse of the world.  They can take complaints.  Their shoulders are broader than the tender orchid battalion would have you believe.

They should be able to see that BLACK LIVES MATTER is not oppositional to blue lives or white lives or all lives.  The opposite statement is: black lives don’t matter.

Today I represented a protester, because I believe in free speech, not only abstractly, but specifically.  But abstractly too, for real; it requires people pushing the boundary. Do you really only want the freedom to talk on the sidewalk without a permit?  Tell me more of piecemeal democracy parceled out that you accept submissively, is it nice there?  Never mind, let’s get back to America.

Free speech is a protected civil liberty by the First Amendment to the U.S. Constitution.

Symbolic speech is protected, too.  “Pure speech” was upheld in a case called Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  That case was about children upholding our liberty as well: John F. Tinker (15 years old), his siblings Mary Beth Tinker (13 years old), Hope Tinker (11 years old), and Paul Tinker (8 years old), along with their friend Christopher Eckhardt (16 years old) decided to wear black armbands to their schools in protest of the Vietnam War and supporting the Christmas Truce called for by Senator Robert F. Kennedy.  The armbands were not “words” nor chants nor slogans.  They were symbols of political speech.   The pure speech, even though it was seen as radical and volatile at that time, was upheld by the Supreme Court.
The protesters who sat, speaking their political speech: BLACK LIVES MATTER; were arrested or given appearance tickets, 74 people in all, many of them, most it seemed, under twenty-five.

The children were dumped into the system, and it spit out many of them fairly quickly.  They were given Adjournments in Contemplation of Dismissal, most of them, and turnstile treatment gave them little chance to complain at what had happened, or to speak up for what they felt was grossly unfair.  Neither did the legal system give them creative outlet for their message.  ACDs are not a bad outcome; generally, it is nearly always an excellent idea to get a client out of the criminal justice system as quickly as humanly possible. Because the judge, the DA, the clerks, the court stenographer, the courtroom officers, the police, the bailiff, ALL of them, are all part of the crane.  This is what Black people and their accomplice/allies are told to turn to for justice; to the very thing they are complaining about.

Such complaining takes courage.  Courage, the secret of liberty, belongs to the Black Lives Matter movement.  I am curious and hopeful to learn what they do next.

I Don’t Want to Be Associated With Him– An essay on the decision to seek and obtain an abortion and how the case law ought to include the right to abortion by way of the First Amendment right to free speech.

            The freedom to obtain an abortion is presently couched in the idea that a woman’s decision to seek and obtain an abortion is a private decision (see Roe v. Wade  410 U.S. 113 (1973).

            That privacy right is found in penumbras of the Constitution (i.e., the shadow of the other amendments….you can’t have free speech without privacy, you can’t have freedom from unreasonable searches and seizures without privacy, etc.).  In Roe v. Wade, the privacy spoken of in such lofty language involves not just a woman but the woman and her doctor.  This is a regrettable rationale for protecting a woman’s right to get an abortion for three reasons:

            First, the privacy between a woman and her doctor fails to adequately address–and debunk–a man’s perspective on the whole “what should ‘we’ do” question; second, privacy rights are not directly found in the Constitution, and in case law have only firmly been recognized since the liberal 1970’s Warren court said so; and finally, because the doctor is accorded far too much weight in the decision to terminate a pregnancy in the case law leading up to the present day.  The decision is no bedrock upon which to maintain abortion rights for women. Instead, it reeks of  parens patriae, only in this context, not so much a parental state authority for children, but a “Daddy State” for women, buttressed by a claim for privacy which is far too easy to argue isn’t there at all.

            This essay will discuss a different rationale, not to supplant but to shore up Roe v. Wade, in the case for abortion rights for women.  The right to seek and obtain an abortion is absolutely taken for granted in this essay.  It is not even the starting point for this essay, just an underlying assumption.  I don’t want to discuss it.  If I have to start with “why self determination and autonomy are keen” I will be writing for days.

Instead, I begin with a conclusion:

            The decision to seek and obtain an abortion is protected in the Bill of Rights by the First Amendment’s right to free speech.  In particular, the right to an abortion is protected by freedom of association.[1]

            The freedom of association is barely found in Supreme Court case law. These are a few of the cases that do utilize the right to association in their holdings:

  1. National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958)
  2. Roberts v. United States Jaycees, 468 U.S. 609 (1984)
  3. Boy Scouts of America v. Dale 530 U.S. 640 (2000)

            Taken in turn, the cases stand for the proposition that free speech and the right of expressive association, are guaranteed by the Bill of Rights in the context of 1). refusing to require the NAACP to produce the names and addresses of all its members and agents, because it inhibited the association’s right to free association; 2.  refusing to compel the Jaycees to accept women as regular members, because of the male Jaycees’ freedom of association;  3. refusing to require the Boy Scouts to admit a homosexual as a scout leader because it violated the Boy Scouts’ First Amendment right of expressive association. 

            The right to freely associate with the people one chooses to associate with dates back, then, to at least 1958.  Actually, the right reaches back to the roots of democracy in America and abroad.

            John Locke wrote,

            “To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”  Locke, John. The Second Treatise of Civil Government. 1690.  See Retrieved December 5, 2013. 

            Locke was one of the great writers and thinkers who contributed to the ideals of the framers of the Constitution.  His writing influenced the idea of “life, liberty and the pursuit of happiness.”  He was writing here of liberty, and explained in his Treatise that it was the natural law of man, in his view, to be free.[2]

            The most important clause here is:  a state of perfect freedom to order their actions”.  Locke is speaking of natural liberty, and included in that liberty is freedom of association.  In other words, in a democracy, I will order my actions such that I will surround myself with the people I want to surround myself with, because I am free.  The freedom of association is therefore as profound as it is embedded in our democratic ideals.[3]

            Whom shall a woman associate with in her personal sphere?  This is a question more important to the average person than political, religious, or economic associations which she may have.  Whom she chooses to live with, to go home to, to grow in time and space with, is more vital than who she votes for, who she tithes to, and who pays her for her labor.

            It is because a woman should have the freedom to choose her family that the decision to abort or keep her baby is hers and hers alone.  If she aborts, she decides for herself that this is not the time for a child, and that this man is not the man she wants a child with.  She expresses with her decision that she wants– for whatever her autonomous reason– to leave her associations as they were before she became pregnant. 

            She may be fourteen and wish to remain childless until later.  She may have no real partner, just a lover, and wish for him to remain at a distance from her personal sphere over time.  She may have been raped by a stranger, a family member, or a close friend, and is distressed by any further association with him.  She may have three children already and wish her happy marriage to remain as nourished as it is without the added strain of another child.  She may be perfectly equipped– emotionally, financially, and in terms of social capital– to have a child, but she doesn’t want one.  Nor is she interested in carrying a baby for nine months and handing her over to a different family.  She wants an abortion to fulfill her expectations of liberty—not only because it is her private right to choose one–but because her personal associations are her choices.

            Yet, the case law about abortion and the freedom to obtain one, do not talk much of this freedom of association.

            Instead of freedom of association, the case law is concerned with bodily integrity and privacy.

            In one of the more recent abortion cases heard at the Supreme Court, Planned Parenthood of Southeastern Pennsylvania v. Casey upholds Roe v. Wade, and strikes a portion of a Pennsylvania law requiring a husband consent to an abortion.  The court held:

“Section 3209’s husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband.” 505 U.S. 833, 838  (1992)

            The foregoing quote is a very good example of how the Court so far, in its effort to protect a woman’s right to an abortion, is insulting. . .  to me, it stinks of the notion that a woman is a valuable suitcase.

            Can we imagine more, please, than the nine months of baby luggage she will become?   Can we talk about the quality of a woman’s life in terms of the father of the baby and the baby herself being the central point of a woman’s life–or not part of it?  This is the key to why  privacy and liberty ought to be buttressed by the freedom of association. 

            The woman is seen too readily as a thing, instead of a  person with a kaleidoscopic life.  “She has to carry the baby” is the theme, rather than, “she will be in some sort of relationship with that sperm donor for life…for life. 

            What if she doesn’t want to see him next week, let alone for life? What if she does not want a baby in her life (yet, or ever) to care for, nurture, teach, and pay for, for the rest of her life?

            What if she does not care for these associations in her life? Does she not have the freedom to associate with whom she pleases? Is not the family unit the most important association she will ever choose? 

            The Court has explained:  “[The law requiring spousal consent] embodies a view of marriage consonant with the common law status of married women, but repugnant to this Court’s present understanding of marriage and of the nature of the rights secured by the Constitution. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 69. Pp. 887-898.”

            In that case regarding spousal consent, the Court explained,

            “We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U.S. [p70]  190, 211 (1888). Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).”  Planned Parenthood of Central Missouri v. Danforth  428 U.S. 52, 71 (1976).

Regarding parental consent in the same case, the Court held,

            “The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor’s abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” 410 U.S. at 164. Pp. 72-75.  428 U.S. 52, 54 (1976). 

            Here, the family unit is acknowledged (and rebuked as a rationale) in support of the opposite proposition: i.e. that the family unit should be strengthened by giving parents control over their child’s decision to abort.  This is juxtaposed with the bizarre idea that the woman’s doctor has as much a right to her associations as the woman herself does–but her parents do not.  While I do not agree with them, I can understand how this brusque treatment of the family unit and glorification of the patient-doctor relationship might infuriate parents who do wish to make that choice for their daughters.

            In  Planned Parenthood of Central Missouri v. Danforth the Court explained no blanket requirement for spousal consent thus:

                        “We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Maynard v. Hill, 125 U.S. [p70]  190, 211 (1888). Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right.” See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).  428 U.S. 52, 71 (1976).

            This decision does, then, come close to speaking of the freedom of association which should absolutely ground the right to an abortion.  But. . . it is only in terms of a father’s rights to association, particularly one who is married to the pregnant woman, that the Court speaks of the relationships inherent in the decision to keep or abort a child.  This is why it is important that the ideas of bodily integrity and privacy are still utilized to ground the rationale for the right to seek and obtain an abortion.  What about his associations, after all? 

            Does the father of the baby not have the freedom to associate with his future child? Does he not deserve the opportunity to be her father?  Does he not have the right to continue to associate with the woman, the child’s mother,  over time and space, in an ever expanding family unit that he has chosen?

            The problem with these questions is that they assume he HAS made a choice already, to associate with his future child and mother of his child, simply by way of his sperm delivery.

            Freedom of association is a thoughtful, active endeavor, not an automatic one based merely on the sexual act.  Lovers, partners, rapists, husbands, boyfriends, one-night-stands, are not always choosing to associate with their life partner.  In most cases, they are choosing to engage in an intimate act for about twenty minutes.  Everything else that night is something else.  The carnal act of producing an inseminated egg may be natural but it is not a vivid example of the association one is choosing, in the moment, to have for the rest of one’s life.   It is usually steeped in emotion…lust, passion, pleasure, etc.  It is very much present tense.  Freedom of association must be allowed to continue in the imagination for the future…much as one begins to plan, and devise, while waiting for a pregnancy test to hurry up and give one results. 

            There may, on the other hand, be a case of a married couple who go to the bedroom after taking an ovary reading or in the midst of baby planning, who say, “Let’s go make a baby.”  What if the woman announces her pregnancy  a few weeks later, and then says, “I’m getting an abortion.”  Here I believe is a very sad, if fictional, case, which still leaves no question in my mind that she has the right to that abortion.  What is a woman’s autonomy, freedom, liberty, what is the freedom of association, if it does not include her right to change her mind?

            I am not unmindful of the difficulty it puts a man in to realize that a woman potentially has more freedom of association than he does, by virtue of her ability to choose her family more fully than he can.  But I did not make the natural laws.  Women can carry babies and men cannot.  The balance perhaps comes because men can often choose to walk away, where a woman has a much more difficult time, by virtue of being engaged in helping to grow that baby over nine months, with all its attendant emotions and deprivations, and by virtue of society’s age-old expectations of her, to walk away from that association. 

            Thus, her associations are very, very often going to include that family unit, and the world will remain in disciplined incomprehension why her economic and political pursuits will probably remain behind those of men forever.  This inequality isn’t fair either, but it is just as often because a woman chooses family associations first and foremost as it is entrenched anti-feminism that causes the inequality.

            Thus, since it is the most important, life-affecting association a woman can ever decide on,–(Who belongs in my family?–) abortion rights should be grounded in free speech and freedom of association as well as the right to privacy and the right to bodily integrity.





[1] The biggest problem with this legal theory (protecting abortion rights via freedom of association)–of all lousy facts–is that freedom of association is not in the Bill of Rights either.  It’s another penumbra.  And yes, I footnoted this gaping hole in my logic…..oh, ok, I will put this in the main text, OK? We’ll discuss it.

[2]               Of course, in the context of abortion, it might be argued that aborting a fetus is not “natural” and that the liberty he wrote of could never include something like the freedom to abort a fetus in order to associate–or not associate– with the persons a woman wishes to associate with. 

                From my perspective, it could be argued that the framers were much more pragmatic– farmer/butcher/hunters that they were–than we usually give them credit for, and one anecdotal version of evidence for this pragmatism is that there were no laws against abortion at the time of the writing of the Bill of Rights. 

                Even moral laws against abortion at that time do not readily take into account that the Constitution thrives to this day only because it is a living document, changeable by the mores of the times.  In this sense, I look to Locke’s pronouncement with a different emphasis than his use of the word “natural.”

[3]               This paragraph has been sponsored by a cheerful nod to Scalia and his strict constructionist brethren.


Reading about men who want to establish paternity over fetuses and impede the rights of a woman to travel where she will, I realized, this post also has relevance for the right to carry to term based on freedom of association. Reading made me so angry. Who are these men who think women are suitcases? Privacy rights AND freedom of association rights together give women the legal rationale for what is so intuitively sensible.