A private membership association is a private organization that is outside the jurisdiction of the state.
Pretend you and your friends just bought yourself your favorite adult beverage and you decided to start drinking it in the street. In most places around the world, you would be reprimanded, fined, or worse for drinking publicly. But, if you did the same thing with your friends in the your own home, you wouldn’t be harnessed by the police. That is because your home is private, and not public like the street is.
A Private Membership Association allows those who are members, to reap the benefits of engaging in commerce, community, and much more, with all the other members of the PMA.
While not explicitly defined in the Constitution, the Supreme Court has acknowledged that certain implicit rights, such as association, privacy, and presumed innocence, share constitutional protection in common with explicit guarantees such as free speech. Specifically, the Supreme Court has described the right to associate as inseparable from the right to free speech.
The right of association under the Constitution was heavily litigated in the 1950’s and 1960’s, and association members’ rights were consistently upheld by the Court. In fact, the right of association became a cornerstone of the civil rights movement.
In general, members of an association do not fall under the jurisdiction of local, state, and federal governments, and corresponding laws and regulations. The exception to this general rule is when the activities of the private membership association "present a clear and present danger of substantive evil".
A simple example of private associations, are ‘drinking clubs’ in Texas. Since prohibition was repealed in 1933, regulation of the alcoholic beverage industry was delegated to individual states. Some states, such as Texas, allow individual counties and cities to govern the sale of alcohol. As a result, 46 out of 254 counties are dry, meaning that the sale of alcohol is forbidden. However, you can go to virtually any restaurant in the dry counties and simply by joining their ‘private association’ or "drinking club", they can sell you and other members alcohol even though it is prohibited by local law!
It is important to note that the right to associate is not limited to social or political activities. According to the Supreme Court, this right can be utilized for business activities (e.g. sale of alcohol). Members of a private membership association have the right to private contract under the due process liberty clause of the 5th and 14th Amendments, and states may not pass laws that impair the obligation of a contract.
In Thomas v. Collins, 323 U.S. (an important Supreme Court case) it was determined: "Great secular causes, with small ones, are guarded. The grievances for redress of which the right of partition was insured, and with it the right of assembly, are not solely religious or political ones. And the rights of free speech and a free press are not confined to any field of human interest".
Rights of Private Membership Associations and its Members is not just constricted to those who live within the United States of America. Almost every country in the world has a right to associate clause, that grants the fundamental basic right for you to associate with whomever you want, whenever you want. This is the fundamental principal that provides a foundation for PMAs to operate. Here are a few examples:
The charter guarantees everyone the freedom of conscience and religion; thought, belief, opinion, and expression, including freedom of the press and other means of communication; peaceful assembly; and association.
Everyone has the right to freedom of association.
1. All Germans shall have the right to form corporations and other associations.
2. Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.
3. The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every occupation or profession. Agreements that restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. Measures taken pursuant . to Article 12a, to paragraphs (2) and (3) of Article 35, to paragraph (4) of Article 87a, or to Article 91 may not be directed against industrial disputes engaged in by associations within the meaning of the first sentence of this paragraph in order to safeguard and improve working and economic conditions.
5. The right to freedom of association shall allow the free establishment and operation of trade unions and other representative bodies.
Everyone has the right to form, join and leave associations, including trade unions and political parties. All people may meet in peaceful assemblies and demonstrations. The Government is not entitled to employ military force against citizens of the state, except in accordance with the law, unless an assembly disturbs the public peace and does not immediately disperse after the articles of the statute book relating to riots have been read out clearly three times by the civil authority.
Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law..
In article 431-1 of the penal code it states: "Anyone who either alone or in a concerted manner threatens the exercise of freedom of expression, work, association or gathering shall be punished". (Translated from French).
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.