Industrial Saboteurs, Reputed Thieves, Communists, and the Freedom of Association

In the early and mid-twentieth century, the United States confronted a shadowy enemy. There were fears that the nation had been, or might be, infiltrated by covert agents of a foreign power, that the U.S. was faced with “tightly organized, highly disciplined, international revolutionary . . . organization[s]” capable of working against American interests from within the United States itself.1 Moreover, the members of these organizations and those associated with them might well work against American interests through actions that were themselves legal, or they might spend long periods covertly preparing for a catastrophic revolutionary act. The U.S. government responded creatively and aggressively to this perceived threat, which, in turn, fostered new thinking about the constitutional limits on government powers. This essay is concerned with one aspect of that new thinking, the jurisprudential development of the idea of “freedom of association.” The difficulty of addressing the perceived threat created the temptation to look for and make use of “guilt by association” and to undertake measures to prevent harmful acts from occurring in the first place by breaking up, harassing, or monitoring dangerous or potentially dangerous associations. Of course, we are familiar with that temptation today from the war on terror, and freedom of association and related concerns have been raised in the context of antiterrorism efforts as well.2 The idea that freedom of association is constitutionally protected is now well entrenched,