Can the State Constitutionaly Regulate Fraudulent Inducement to Associate?

Ian Ayres

Lots of people responded that requiring a private conversation between a discriminatory organization and its potential members would unconstitutionally chill the associational rights.

But this ignores the unavoidable default nature of speech/silence. Our contractual silences always have some default meaning. Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation. There is no constitutional reason why the New Jersey legislature can't flip this default. They could ordain that private organizations that fail to privately disclose (and obtain acknowledgements about) their policies that are in derogation of general civil rights restrictions will be deemed to accept those restrictions.

Either silence on the topic means that the organization retains the right to discriminate or they don't. Either default burdens associational rights in the sense that it forces orgs that want the opposite treatment to speak. The current (discrim allowed) default burdens the associational rights of groups that don't want to discrim because they are forced to speak to get what they want. So at first cut the Constitution doesn't have a way to prefer one vs. the other. But here are two arguments for switching to the non-discrim default. 1. Most orgs prefer non. discrim default so as an empirical matter we are forcing less speech; and 2. The non-discrim default is consonant with a state law of general application -- so that we are only forcing orgs that want rights in derrogation of general state policy to speak.

There is however a continuing concern that our in camera review mechanism may fail and that the public would learn the names of members. One commentator chillingly asked: "Have you forgotten that the membership records kept by gay organizations during the Weimar era were seized by the Nazis when they came to power, and used to help round up homosexuals?"This is an important concern. And maybe we should back away from even in camera review. Readers of this blog know that information tends to find ways to be set free. So imagine two different ways to induce the private conversation between the boy scouts and its potential members:1. If sued an organization would have a duty to prove by a preponderance of the evidence that it had a general policy of disclosing its policy to prospective members and receiving their written acknowledgements. They would not have to retain the acknolwedgements. The organization might be able to establish the general policy through testimony and it might be rebutted by counter testimony.
2. The state might create an action for "fraudulent inducement to associate." This might be a private right of action for people who were induced to join an organization without ever being told that it discriminated. Besides the victims of discrimination, there are people like myself who feel injured by learning that we unwittingly associated with a discriminatory organization.

It might even be constitutional to hold a church liable for fraudulently inducing membership Didn't Hakeem Olajuwon unwittingly give to a mosque that was supporting terror? A central idea here is that we have constitutional pricniples on both sides of the question.
Posted 9:32 AM by Ian Ayres [link]