Constitutional Issues Pertaining to Required Membership and/or Use of Required Fees Prerequisite to Licensing

Keith Eric Grant, PhD

Summary

This white paper provides a short review of the legal basis for occupational regulation, mentions potential anti-trust limitations in passing, and then takes a deeper look at the limitations on use of private organizations by regulating agencies that may result from the First Amendment guarantees of Freedom of Association and Freedom of Expression. In short, these rights, with some limitations in labor law and anti-discrimination law, presuppose a right not to associate and not to express ideological or political viewpoints with which one disagrees. Although the principles are far broader in the scope of their implications, the regulation of massage therapy is used as a motivation and example for the issues.

Introduction

The freedoms of commerce that are implicit in the due process clause of the 14th amendment, guarantee a right to do business except where there is a countervailing public interest imposed by due process. The Supreme Court ruling of Dent v. State of West Virginia, 129 U.S. 114 (1889) set out the principle that the state can limit the practice of occupations when it implements a needed public protection from harms of incompetence and malfeasance. There is thus, embodied in occupational licensing, a fine constitutional balance between freedom of commerce and intrusion of the police power of the state upon commerce for the benefit of the public. In allowing a state to determine public benefit, the standard of rational basis is normally used, except when the law involves a suspect classification that might involve discrimination (e.g. race, gender, national origin). In this case, the more stringent test of strict scrutiny is applied. The courts have also ruled that discrimination does not have to be explicit in the law itself; discrimination in the application of the law is sufficient, as in Yick Wo v. Hopkins, 118 U.S. 356 (1886).

There can be other limits imposed upon regulation of a profession. The decision of California Liquor Dealers v. Midcal Aluminum, 445 U.S. 97 (1980) imposed restrictions on the use of private agencies in implementing regulation (or other trade restrictions) if state action immunity from the Sherman anti-trust law is to be maintained. The Midcal decision notes two criteria for immunity from anti-trust: first, the restraint must be "one clearly articulated and affirmatively expressed as state policy"; second, the policy must be "actively supervised" by the State itself. We leave a deeper look at such anti-trust considerations for another white paper, focusing below only on issues stemming from the First Amendment rights of freedom of association and freedom of expression. In particular, we look at the legal, moral, and other precedence against being required to join an organization or to be required to pay fees to an organization that will be used for ideological or political expression.

The question of freedom not to associate has occurred most prominently in the question of whether or not private organizations can refuse membership to individuals whom they feel will interfere with their purpose or ideology In Roberts v. United States Jaycees 468 U.S. 609 (1984) Justice Brennan presents the opinion of the court. Justice Brennan explicitly states that "Freedom of association therefore plainly presupposes a freedom not to associate". He also provides that the right not to associate is not absolute and provides the grounds for its abeyance.

"The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."

This statement sets out the right of the state to force an association to accept members when not to do so effects a clearly discriminatory result. That statement, applied to gender discrimination, forms the basis for the decision in 'Roberts' and for the decision of Board of Directors, Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987). In contrast, in Boy Scouts of American v. Dale 530 U.S. 640 (2000), the majority of the court found that the 'Boy Scouts' were a sufficiently private organization that forcing membership of homosexuals would interfere with their stated ideology. Justices Stevens and Souter wrote dissenting opinions.

Forced Association & Expression in Massage Regulation

Before moving into the United States legal precedents, we first note that Article 20 of the United Nation's Universal Declaration of Human Rights is explicit on the issue of forced membership in an organization.

1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.

This statement can be construed as providing a moral backdrop to forcing organizational membership. We also note that, in their health professions legislative review, the British Columbia Health Professions Council also expressed a negative opinion of forced membership.

VII. Mandatory Membership

"Public trust and confidence in the self-regulating process is reinforced with a clear separation of the regulatory body and professional association. Further, the Council sees little distinction between mandatory membership and mandatory dues. The system described by the College of Dental Surgeons still restricts members' freedom of association since it is the College that selects the association that receives the grant. This raises the perception that the duties of the regulatory body are not entirely separate from the activities of the professional association."

"After carefully considering the responses, the Council concludes that it is not in the public interest for members of a regulated health profession to be required to belong, or to pay dues, to a professional association."

"Therefore, the Health Professions Council recommends the repeal of any provision in any professional statute, rule or regulation that requires members of a regulated health profession to belong, or to pay dues, to a professional association."

Despite the above, a number of states and local agencies are currently specifically requiring passage of the tests offered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) as a prerequisite to legal practice. North Carolina is, to our knowledge, currently unique in also requiring current certification at the time of license application. Requiring certification or current professional organization membership has been more common among regulations written by local agencies.

Since certification via the NCBTMB is treated by the NCBTMB as membership, conferring the right to vote for board members, requiring certification by NCBTMB also appears tantamount to requiring membership in a private organization. None of the states (or local agencies) requiring use of the exams, for which fees are collected by the private organization, has to our knowledge ensured that licensing applicants are provided with a summary of how the certification organizations uses funds nor are they provided with an option to opt-out of paying the percentage of funds used for political activities or "ideological speech". This is potentially in direct conflict with legal precedence, as summarized in the cases below.

Expressive and Political Speech

The NCBTMB not only engages in activities pursuant to the creation and maintenance of certification exams. It also has actively lobbied legislators and local agencies (e.g., at conventions of the League of Cities) for its mandated use. The NCBTMB can thus be seen as having been involved in the creation of any problems arising from such compulsory use.

The NCBTMB also has involved itself in marketing and media campaigns. Since massage has little objective evidence of posing a safety issue, a “Massage Safety” campaign clearly has ideological components that may spark many to disagree.

Massage Message Gets Out

National Massage Safety Week, an integrated media and marketing initiative conducted by NCBTMB, took place March 21-27 this year and was designed to help educate consumers about the importance of seeking massage and bodywork services from a Nationally Certified practitioner.

Underlying the issues of expressive speech is that the NCBTMB is a 501(c)(6) “Business League” rather than a 501(c)(3) educational organization. The latter type of organization can “test for the public safety” put isn't allowed the range of political and expressive speech given to a business league. In this case, tax status speaks volumes about intent and is a factor that needs to be considered in government agency mandates for use.

Court Precedence

Abood v. Detroit Board. of Education, 431 U.S. 209, 222 (1977)

The freedom to associate necessarily entails a right not to associate. Compelled association can interfere with protected associational freedom just as readily as compelled disclosure of organizational membership, direct restrictions on organizational activity, and governmental denial of benefits or privileges to members of certain associations.

The principles that under the First Amendment an individual should be free to believe as he will and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State, prohibit appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher. Pp. 232-237.

(a) That appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. P. 234.

These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488, or to associate with a political party, Elrod v. Burns, supra; see 427 U.S., at 363-364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.

[Footnote 13] Compelled support of a private association is fundamentally different from compelled support of government. Clearly, a local school board does not need to demonstrate a compelling state interest every time it spends a taxpayer's money in ways the taxpayer finds abhorrent. But the reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people. The same cannot be said of a union, which is representative only of one segment of the population, with certain common interests. The withholding of financial support is fully protected as speech in this context.

KELLER v. STATE BAR OF CALIFORNIA, 496 U.S. 1 (1990)

The State Bar's use of petitioners' compulsory dues to finance political and ideological activities with which petitioners disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.

 Teachers v. Hudson, 475 U.S. 292 (1986)

[This case resulted in requiring "Hudson notices" on union use of funds]

 United States Court of Appeals for the Third Circuit, No. 01-3858

The First Amendment affords public-sector employees the freedom not to associate with a labor organization. See Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 301 (1986) (quoting Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222 (1977)). There are limits to this constitutional freedom, however, in light of organized labor’s important role in advancing employment conditions. Abood, 431 U.S. at 225-26. Thus, as a means of curing the so-called “freerider” problem posed by its representation of non-members, a union may charge each non-member employee a fairshare, or agency, fee equal to his or her per capita share of the union’s expenses arising from its duties as a collective bargaining representative. See id. at 235-36. But a union may not, consistent with the First Amendment, collect fairshare dues to support ideological causes or other expenses insufficiently related to collective bargaining. Id.

In the Supreme Court of the United States, Petition for a Writ of Certiorari

COALITION OF NEW JERSEY SPORTSMEN, INC.; BOB’S LITTLE SPORTSHOP, INC.; SPRINGFIELD, INC.; ARMALITE, INC.; ROBERT L. VIDEN, JR.; STEPHEN D. MCCLURE; JOHN DOE I, II, III, IV, V, VI, VII, VIII, & IX, Petitioners v. DONALD T. DIFRANCESCO, Acting Governor, et al., Respondents

The Act violates freedom of association not only by compelling membership in a gun club, but also by requiring a registrant to report such membership.

“State action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” NAACP v. Alabama, 357 U.S. 449, 460-61 (1958) (invalidating compelled disclosure of memberships).

The fact that the gun clubs are by definition private makes the requirement all the more suspect. “Compelled support of private association is fundamentally different from compelled support of government.” Abood v. Detroit Board of Education, 431 U.S. 209, 259 n.13 (1977) (Powell, J., concurring)."

"In sum, by irrationally discriminating between persons based on whether they were members of gun clubs by a specified date, the Act deprives non-club members of equal protection of the laws and violates their right to freedom of association."

U.S. Supreme Court NAACP v. ALABAMA, 357 U.S. 449 (1958)

We thus reach petitioner's claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action which, although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of the State.

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364 ; Thomas v. Collins, 323 U.S. 516, 530 . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. See Gitlow v. New York, 268 U.S. 652, 666 ; Palko v. Connecticut, 302 U.S. 319, 324 ; Cantwell v. Connecticut, 310 U.S. 296, 303 ; Staub v. City of Baxley, 355 U.S. 313, 321 . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the [357 U.S. 449, 461]   effect of curtailing the freedom to associate is subject to the closest scrutiny.

 United States Court of Appeals for the Third Circuit, No. 03-2522
JOSEPH S. COCHRAN; BRENDA S. COCHRAN, Appellants

This appeal requires us to decide whether a federal statute may compel a small dairy farm in Pennsylvania to help pay for the white-mustache milk advertisements and other dairy promotions. Implicated here are general First Amendment precepts that protect the right to refrain from speaking and the right to refrain from association, and the specific issue of whether the government may compel individuals to fund speech with which they disagree.

For the reasons that follow we reverse the judgment of the district court and hold that the compelled speech pursuant to the Dairy Act is private speech, not government speech, and is therefore subject to First Amendment scrutiny. We hold also that the Act violates the Cochrans’ First Amendment free speech and association rights by compelling them to subsidize speech with which they disagree

Discussion

Although massage therapy is more likely to incur regulation at the local level than are most other professions, it seems unlikely that the constitutional considerations above will be exclusive to massage at the level of state occupational regulation. While the NCBTMB has been used as an example and focus, the issues are more general.

It also appears unlikely that states, local agencies, and private certification organizations have thought through all the implications of having an exam or certification mandated by law rather than left as a voluntary credential. For example, NOCA/NCCA (National Organization of Certifying Agencies / National Commission for Certifying Agencies) is a private non-profit organization involved in setting procedural standards and accrediting certifying organizations. In their 1995 standards document, NOCA/NCCA expressly stated at the beginning of the document that “The NCCA Standards for Accreditation are standards for voluntary certification organizations”. In their current (2005) standards document, that explicit statement was omitted, being replaced by defining certification as a process “often voluntary”. It seems doubtful, however, that either NOCA/NCCA or the involved certification organizations have modified their structures for public notification and public accountability to account for anti-trust or First Amendment issues. It also seems doubtful that many regulating agencies have perceived that, in mandating use of a private organization's exam or certification process, they may incur additional accountability responsibilities or create a vulnerability to court challenges.

In summary, it seems very likely that compulsory membership in an entirely private professional or certification organization violates first amendment guarantees. The ‘Keller’ decision would indicate that compulsory membership is not precluded when a “private organization” is created by the state expressly for such regulation but, even in this case, freedom of expression rights still apply. When a state or local agency expressly creates such a private organization, as with the California Bar Association in ‘Keller’, the government agency can dictate the terms of engagement. Ironically, freedom of association would prevent such mandates being laid upon a purely private organization, even for purposes of protecting individual freedom of expression. Thus, the state or local agency, is left with the responsibility of ensuring that individual rights, such as ‘Hudson notices’ and opting out of expressive speech, are protected. This seems of necessity to imply that the mandating agency must explicitly contract with the private exam organization to ensure such first amendment guarantees.

Legal Caveat

This white paper should be taken as an academic review of existing legal decisions, not as an independent legal opinion. The purpose of the white paper is to make information on the issues covered more widely available and known to all stakeholders. Local agencies regulating a profession should consult their city or county attorney as to potential legal vulnerability of contemplated or existing regulations relative to freedom of association and freedom of expression. State legislators or regulatory agencies should similarly contact their state attorney general for a legal opinion on these matters. Individuals contemplating a challenge to regulations should consult with a private attorney and/or with a legal advocacy group such as the Institute for Justice (IOJ) or American Civil Liberties Union (ACLU) as to the specifics of their situation.