Three Upcoming Free Speech Cases at the Supreme Court

Today, The Heritage Foundation hosted a panel on three important, upcoming free speech cases at the Supreme Court.  Key points from the attorneys representing the challengers are below.  The entire presentation is fascinating and can be viewed here (starting at 14:50).

First, Jacob Huebert of the Liberty Justice Center discussed Janus v. AFSCME, a challenge to Illinois compulsory union dues for non-members, which will be heard February 26:

  • The key question in Janus is can the government force its employees to give money to a union just to keep their jobs?  Illinois is one of 22 states that allow unions to take dues from every worker even if he or she is not a member of the union.
  • Janus argues that these laws violate right to choose which political speech to support and which groups to associate with.
  • Janus lost in lower court because of Abood v. Detroit Board of Education, where Supreme Court skipped the First Amendment analysis and did not require a showing of compelling government interest.  The compulsory dues in Abood were justified by the government interest in labor peace to avoid free riders (non-members gaining from unions' collective bargaining efforts), but the Court decided that unions cannot make workers pay for electioneering activity because association for political purposes is at heart of the First Amendment.  Because of this, a two-tier dues structure exists for union members who do not wish to support the unions' electioneering.
  • Abood is wrong because: 1) public unions’ activity is essentially political – discussions with the government about pay, etc., and 2) the free-rider justification is false – not everyone benefits from the collective bargaining and it could even be a harm if a person would prefer to be judged on individual merits.  Janus objects to the spending and tax increases supported by the union.  This argument assumes that every worker only cares about his own narrow monetary self-interest.
  • The challengers are optimistic that the court is willing to overrule Abood because of the rulings in Harris v. Quinn and Friedrichs v. California Teachers Association and hope the Court will say clearly that when you take a government job, you do not have to check your First Amendment rights at the door.

Second, Todd Gaziano of the Pacific Legal Foundation discussed Minnesota Voters Alliance v. Mansky, a challenge of Minnesota's prohibition of political apparel at the polls, which will be heard February 28 (and which we have covered before):

  • The Minnesota law's “breathtaking scope” is the primary reason it is unconstitutional.
  • Poll worker instruction said the law prohibits wearing clothing promoting a group with recognizable political views such as the Tea Party or
  • Andy Cilek, MVA's President, was twice prevented from voting because he was wearing a Gadsden Flag t-shirt. The third time he was allowed to vote but poll workers said they were taking down his name to pass along to law enforcement and authorities for possible prosecution.
  • The state’s justification is preventing intimidation and confusion.
  • Supreme Court has upheld bans on active campaigning.  That is not at issue here.
  • If clothing is actually intimidating, that would already be prohibited by separate statutes.  Law was substantially overbroad vs. the dangerous speech it was trying to prevent.
  • The state is now trying to reinterpret the law, but statute on its face is broad, reaching anything political. 
  • Almost anything can be considered political – religious messages, military messages, etc.
  • The problem is in application - different poll workers will apply statue differently, resulting in viewpoint discrimination and selective application.
  • The state admitted during litigation that there were especially broad applications of the law – Minnesota Vikings shirt, AFL-CIO shirt, and Chamber of Commerce logo on a shirt – all were political.
  • The state claims it needs the law to promote peace at the polls and prevent silent intimidation.  Supreme Court found that unfounded fears of disruption are not a basis for a broad prohibition on speech (Vietnam armband case - Tinker v. Des Moines Independent Community School District).

Finally, Jordan Lorence of Alliance Defending Freedom discussed National Institute of Family and Life Advocates (NIFLA) v. Becerra, a challenge to California's compelled disclosure law for pro-life pregnancy centers, which will be heard March 20:

  • The law requires licensed pro-life facilities (which offer ultrasounds) to post a sign saying California has public programs providing free contraception and abortion for eligible women, compelling them to speak in a way they find unconscionable.  It requires unlicensed facilities (that offer assistance services) to post a sign saying it is unlicensed with no medical provider supervising its activities.
  • Law is written to apply to only those with an ideological objection to abortion by exempting non-OB/GYN medical providers and all who participate in the government's program to provide or refer women to an abortion.
  • The state could use all sorts of communication channels if it thinks that women are insufficiently informed about their options for an abortion, but the only one it does is requiring pro-life pregnancy centers to convey its message.
  • “Raw display of governmental coercion” to force pro-life pregnancy centers to promote abortion.
  • Viewpoint and content-based discriminatory, only required of pro-life pregnancy centers – regular doctors and OB/GYNs do not have to post signs.
  • State’s justification (without evidence) is that centers are tricking women into thinking that they are abortion clinics.
  • State also says it is commercial speech, but no commercial transaction is taking place – services for free offered on an ideological basis.
  • It maybe could be justified on a medical disclosure/informed consent basis, but that is not state’s position or action – trying to entice women into a surgical procedure, not warn about its potential harms.  
  • West Virginia v. Barnett – Supreme Court struck down compulsory pledge of allegiance law during World War II, famously saying: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
  • The lower court said that the law was permissible because it regulated a profession, which is not a recognized category of exemption from the First Amendment.  The Ninth Circuit used its own lower standard of scrutiny instead of the strict scrutiny mandated by the Supreme Court in Town of Gilbert.

Jordan Lorence also summarized what the three cases have in common.  The common thread is that Founders understood human tendency to misuse governmental power of coercion to censor those opposing the prevailing orthodoxy or force people to support prevailing orthodoxy at the time, and they passed the First Amendment to prevent that.  MVA v. Mansky is about straight censorship, Janus is about compelled speech via funding, and NIFLA is about compelled speech.  

All of these cases will have serious implications for all Americans' rights not to be forced to speak or prevented from speaking by the government.  All three advocates were optimistic that the Supreme Court will rule in their clients' favor, strike down these laws, and protect free speech rights.