Tuesday, February 28, 2023
The United States Court of Appeals for the Second Circuit has handed down an important decision, vindicating the First Amendment right of a pro-life pregnancy-resource center to hire-for-mission. You can get the opinion in Slattery v. Hochul here. I was pleased that the court cited, quoted, and relied upon a paper of mine, from a while back, which was written as a tribute to my former boss, Judge Richard S. Arnold. That paper relied, in turn, on an earlier one, called "The Story of Henry Adams's Soul: Education and the Expression of Associations." Here's the abstract:
In several decisions handed down during its 1999 Term, the United States Supreme Court focused on the freedom of expressive association. Generally speaking, expressive association is regarded by courts and commentators as just another form of individual self-expression, and voluntary associations as facilitators for such self-expression.
In this Essay, Professor Garnett suggests that a shift in focus, from individual self-expression-through-association to the expression of voluntary associations themselves. It is suggested that, in several recent decisions including Dale, Mitchell, and California Democratic Party - the Court has indicated an appreciation of the role played by mediating institutions in shaping citizens, in transmitting values and loyaltiesthat is, in educating. In this role, associations are not only vehicles for the messages of individuals, but also speakers themselves. Associations are seen as more than conduits, but as crucial parts of the scaffolding of civil society. And the messages they express are valued not only to the extent they carry the voices of individuals, but also because they compete with the messages of government in the arena of education, broadly understood.