The Right to Freedom of Expressive Association and the Press

in their writings, and thus the Communist Party's publications share a unified message. 45. Writers on the media's methods of story selection often point out that the press considers the importance and interest of a news story to its audience to weigh more heavily in favor of its publication than the moral or political messages it conveys. See HERBERT J. GANS, DECIDING WHAT'S NEWS 147-55 (1979) (arguing that the likely importance of a news story to the reading public is the first of two key "substantive considerations" that determines how journalists select material for publication); id. at 155-57 (describing the second such consideration as whether a story is "interesting" in the sense that it is about an unusual or exceptional instance of human behavior-the author gives stories depicting "'hard-core criminals' who go straight" and "amateur and professional adventurers who climb a previously unclimbed mountain or set an endurance record" as examples of this phenomenon). 46. To be sure, my framework does not require that a group disseminate a message for public consumption in order to be expressive in nature-a group of people who congregated to debate current political issues, for instance, would also constitute an expressive group even though its members only spoke to one another (in their capacities as members of the group) and not to outsiders. For an extended argument detailing why this must be the case given existing freedom of association jurisprudence, see infra notes 86-93 and accompanying text. 47. See, e.g., Jaycees, 468 U.S. at 632 (O'Connor, J., concurring) (arguing that "commercial associations" are not entitled to the protection of the doctrine of freedom of association); Carpenter, supra note 42, at 1518 (arguing that "[e]ven though not yet explicitly recognized by the Court, the commercial-expressive distinction actually helps to explain the results in many of the Court's decisions pitting a claim to freedom of association against some state regulation"); Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1852 (1991) (arguing that "the state interest in providing equal access to commercial opportunities is much greater than that in providing equal access to other types of advantages or intangible benefits," and thus that businesses should be denied associational protection). 202 [Vol. 55:191 This content downloaded from 207.46.13.129 on Sun, 26 Jun 2016 06:49:11 UTC All use subject to http://about.jstor.org/terms Oct. 2002] EXPRESSIVE ASSOCIATION AND THE PRESS purchase and sale of goods and services, and the recruitment and training of employees.48 Like the unified-message criterion, the low-commercial-activity criterion is inconsistent with the thesis of this Note. This point can be demonstrated by looking again at the example of a commercial newspaper. Although the threshold commercial-activity requirement is amorphous-even by its advocates' admission49-most readers would probably acknowledge that a commercial, for-profit newspaper engages in a substantial amount of commercial activity; commercial newspapers must sell both copies of their publication and advertising space, purchase raw materials, and employ personnel. Hence, under the commercial-activity criterion, a commercial newspaper is not an expressive group and thus not entitled to the right to freedom of expressive association. However, as noted above, such a publication is indeed an expressive group under my formulation. The unified-message and low-commercial-activity criteria, if they must truly be fulfilled in order to render a group of persons engaged in cooperative action expressive, pose difficulties for the thesis that press entities are expressive groups and thus entitled to the protection of the freedom of association doctrine. However, I do not believe that the law requires these criteria to be fulfilled. Thus, the thesis of this Note remains valid despite commentators' arguments in favor of the additional criteria. I will make two types of argument against each criterion below. First, I will argue that each criterion fails to accurately reflect the law. Second, I will argue in the alternative that even if the additional criteria do correctly represent existing freedom of association jurisprudence, my more minimal approach is superior on logical and practical grounds.