Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups

This Article maintains that the First Amendment-based right of expressive association, interpreted most recently in Boy Scouts v. Dale, can protect political and religious associations from intrusive law enforcement investigations that are unrelated to criminal activity. Balancing groups’ right of expressive association against the compelling state interest in investigating potential terrorist activity, the Article proposes that investigations of First Amendment activity cannot begin absent a reasonable suspicion of criminal activity. Unless restrictions are placed on the government’s ability to conduct surveillance of First Amendment activity, such surveillance will increase. The Article concludes that the proposed constitutional safeguards of protected expressive activity are necessary to avoid harming fragile associational rights in times of national crisis.