The Battle Against Freedom of Association

Freedom of Association is not explicitly listed in the First Amendment, but the Supreme Court has never-the-less upheld association rights in expressive organizations and for intimate associations, such as the family and more broadly in private social clubs.

The State of California continues its attack on Craigslist and Roommates.com trying to make these organizations liable for California Fair Housing Law violations when they publish a classified ad that breaks the law.  In short, it is illegal in California (and some other states) to advertise for a roommate who is a specific gender or race or religion, even if there are strong compatibility reasons for doing so (As in most states, it is A-OK to discriminate against smokers).

I won't get into the whole legal argument about these listing services, except to say that it is absurd to hold third parties accountable for other people's speech.  I want to ask a more general question.  How do laws that prevent me from choosing a roommate (however I want to) pass constitutional muster?  Taking on a stranger for a roommate is a scary proposition, especially in states like California that make it well nigh impossible to evict someone once they have moved in.  Short of marriage, it is hard to imagine a more intimate relationship -- in fact, many roommates probably see more of each other than some spouses.  On average, most people are probably not a compatible roommate for me.

Beyond this, most of the people who run afoul of the housing law do so with their speech, not the actual selection of a roommate.  Most fair housing complaints are against people's advertisements or public statements.  This strikes me as a double violation - the banning of speech about my association preferences. 

  • http://www.hodakvalue.com/blog M. Hodak

    You'd think it wouldn't be that difficult, politically, to proclaim the right to live with whoever one wishes, for any reason, or no reason at all. I find the gender restriction especially hard to believe. No-one would consider imposing a male roomate on a female, so why can't someone just say they're looking for a specific gender?

  • C. Sean

    Amusingly, the underlying discrimination (with regard to roommates, at least) is perfectly legal. It's just illegal to 'advertise' that discriminatory intent.

  • http://genericconfusion.blogspot.com/ Greg

    I'm waiting for someone to tell Craigslist, "All those ads that say 'Republicans need not apply' are beyond the pale and illegal."

  • Septagon49

    The right of free association does not have to be enumerated in the 1st amendment or any other amendment. The consitituion provides for a Federal government of delegated and enumerated powers. The 9th amendment states:
    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
    This means that the unenumerated right retained by the poeple are on par with any listed in the constitution. So such right like free association should enjoy equal status with the rest of the Bill of Rights. Sadly it does not because the 9th amendment has been ignored since the ink went dry on the constitution due to the desire to increase Federal power