In constitutional law, “the Supreme Court has declared guilt by association ‘alien to the traditions of a free society and the First Amendment itself’. It violates both the Fifth Amendment, which requires that guilt must be personal, and the First Amendment, which guarantees the right of association.”
“In other words, the Fifth Amendment forbids holding a moral innocent culpable for the acts of others.”
Source: David Cole, Professor of Law Georgetown University Law Cente, Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’ in COUNTERTERRORISM: DEMOCRACY’S CHALLENGE (Bianchi & Keller eds., Hart Pub. 2008)
=========
In logic and argumentation, guilt by association is considered to be a fallacy known as the association fallacy or simply as an ad hominem attack.
Very simply, guilt by association happens when a person is viewed negatively because of his or her association with an individual or group viewed negatively. The “guilty” party has not actually committed any transgression, but is declared guilty simply through some, often loose, association.
Example: A photograph recently surfaced showing former President Barack Obama in the company of Louis Farrakhan.
Louis Farrakhan expresses anti-semitic views. Therefore, Barack Obama must hold anti-semitic views.
Example: Linguist, philosopher and social critic Noam Chomsky has been interviewed by conservative talk show host Stefan Molyneux. Molyneux is known as an anti-feminist and is classified by some as alt-right. Therefore, Noam Chomsky is alt-right and should be condemned and shunned.
In an article written for the Muslim Times, Zia H. Shah discusses how the accusation of guilt by association may be used against moderate Muslims: “In a post 9/11world especially, moderate Muslims have been subject to unfortunate associations due to the acts of fundamentalists and Jihadists.” (Individual Responsibility or Guilt by Association? January 11, 2015)
Historically, guilt by association may be more than a matter of a smear on a person’s reputation–it could result in criminal conviction and punishment. In the book Family Punishment in Nazi Germany: Sippenhaft, Terror and Myth By Robert Loeffel, Sippenhaft is described as family liability for the crime of a relative. The crime committed was often simply being declared an actor against the state or a resistor. Punishment ranged from property confiscation to imprisonment to execution. Children of the resistors could be placed in camps, sometimes put up for adoption if their parents were put to death.
In modern times, North Korean defectors report that guilt by association continues to be practiced today: